Farm laws: Constitutional half-truths

Apart from political half-truths and lies, there are also legal and constitutional half-truths involved in the passing of the three farm laws by the Centre that will harm the farmers. The farm laws were first promulgated as ordinances, and this was done at the height of the Covid-19 pandemic and lockdown in June. Subsequently, they were replaced by Bills, and these were passed during pandemonium in Parliament. The Rajya Sabha’s support to these laws is therefore a ‘half-truth’ as the Deputy Chairman refused to count votes.

Though Parliament has plenary power under Article 368 to amend the Constitution, it cannot legislate on State subjects (List II), even if two-thirds of its members and half of the states agree. Leaving agriculture in the states’s domain was a substantive part of the federal character, which has been held to be a basic feature of the Constitution. The basic structure doctrine laid down by the Supreme Court in 1973 prevents Parliament from tampering with the share of states’ sovereignty.

Several laws have been made by the states under Entries 14, 18 and 28 of List (States) III to facilitate support for small and marginal farmers. The Centre’s three farm laws effectively abrogate them. But even after these three farm laws, the constitutional powers of the states do not vanish. The states can develop a policy or law and enforce them. The Centre has adopted a mischievous interpretative means to abrogate the states’ support to farmers.

Misinterpretation and abuse

Entry 14, 18 & 28 of List II give exclusive powers to states to make laws on “Agriculture (14), Land (18), Markets and Fairs (28).” ‘Agriculture’, etc, includes all its aspects, such as land, the agricultural operations, seeds, the produce and markets. It will be obnoxious to say ‘agriculture’ does not include ‘farm produce.’ The APMC laws define “farm produce” as the “produce of agriculture.” The Centre has misled Parliament to believe that it has the power to make laws under the term ‘food stuff’ in Entry 33 (b) of List III. But, by any means, ‘food stuff’ does not mean ‘farm produce.’

The expression ‘industry’ in List III covers only manufacturing but not its product. Similarly, under Entry 26 and 27, trade and commerce, supply and distribution are separately specified. Unlike “industry”, Entry 14 of List II ‘agriculture’ is comprehensive and includes agricultural produce. The sale and purchase of agricultural produce fall under Entry 28, List II – “markets and fairs”, which is not subject to any other entries in List II and III. The states draw their independent and plenary legislative power from this entry, excluding Parliament totally from its ambit.

Conflicting laws

The Constitution, under Article 246, says the Centre’s law will prevail over contradictory provisions of state laws on subjects in the Concurrent List. But there is an important exception to this rule of repugnancy. If the state’s bill is assented to by the President, the state’s law will prevail and override the Centre’s law in that particular state (Hoechst Pharm Ltd. vs State of Bihar, AIR 1983 SC 1019. Thus, these Acts, made under the Concurrent List, can be effectively surpassed by the states.

Another important power the states have ignored is that there is no need for the doctrine of repugnancy even if their law on List II subjects conflicts with the Centre’s law. If states are courageous enough to make policies and laws using these provisions, the three farm laws could become ineffective.

The surrender of states

The states surrendered and agreed to the Constitution 101st Amendment Act 2016, adding 246A to empower the Centre to make the GST law covering the states, which is a major assault on the powers of states and the fiscal federalism of the nation. We saw the consequences of this surrender of power by the states when states’ finances dwindled during the pandemic, but the Centre was not willing to take the burden on itself.

The Centre’s statement that MSP was never a law is true; it was all through a strong policy separately implemented by all the states while the Centre’s study commission fixed the rate. The Centre’s new farm laws lifted restrictions on inter-state trade in farm produce, which will harm the local farmers while allowing traders to deny the state the ability to stock food grains. Facilitating big farmers and giant corporates may lead to the export of grains, but that could in turn threaten the food security of the nation as a whole. For instance, Telangana has 90% small farmers, holding below five acres (80% for the country as a whole). For them, these trader-friendly laws will not be ‘farm laws’ but ‘harm laws.’

The states’ agricultural market laws were primarily intended to support and protect the farmers, in view of their weaker position in the profit-manipulative commercial market. The new farm laws leave the lambs in competition with the wolves. 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 so-called farmer’s empowerment law gives overriding effect to the contractual farm agreements. If the agreement between the farmer and the trader is in conflict with the state’s law, the private agreement will prevail over the law. In effect, then, the states are surrendering their power not only to the Centre but ultimately to the corporate-drafted agreements.

State’s law prevails

The Bihar agricultural law rightly listed tobacco as ‘agricultural produce’ and APMC Monghyr levied a heavy market fee, which ITC Ltd challenged. The Supreme Court’s Constitution Bench of then CJI G B Pattanaik and Justices Y K Sabharwal, Ruma Pall and Brijesh Kumar held in ITC vs APMC & others that the state’s law will prevail. It was held that “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 states should take the lead in making better laws for the welfare of farmers, which is the states’ fundamental duty under Articles 37 and 39 of the Constitution.

(The writer is a former Central Information Commissioner and Professor of Constitutional Law)