Part 1A in the Analysis of the Farm Bills of 2020.

 


The Essence and Legislative Nuances of the Farm Bills of 2020.

Part 1A


Introduction: 


There has been a rife and raging debate regarding the righteousness and/or the fallacies of the ‘contentious’ Farm Bills not only across the Republic of India but around the globe.


Most often than not, these debates are ensconced in the garb of ignorance and hap hazard-knowledge which is naturally, more dangerous than no knowledge at all.


So the foremost thing in my judgment would be to simplify this entire ordeal of the concerned legislation. 

Therefore, let's simplify the mundane titles of the bills to lay man terms;


  1. Farmers Produce Trade and Commerce(Production and Facilitation) Act, 2020 would be referred hereafter as ‘APMC Complementing Act’

  2. The Essential Commodities(Amendment) Act, 2020 alias ‘The Freedom of Food Stocking by Agribusinesses Act’

  3. The Farmers(Empowerment and Protection) Agreement on Price Assurance and Farm Services Act a.k.a ‘Contract Farming Act’


Now, any debate or discourse about the aforementioned farm bills, ideally, should start from the legislative journey behind their passage. 


The Constitutionality of these Laws rather forms an esoteric part of the public discourse revolving around them, but do they stand the test of scrutiny of the vires of the constitution, both- in letter and spirit? 


What is the question of the constitutionality of these laws?

As per Union of India v H.S.Dhillon (1972), the constitutionality of parliamentary laws can be challenged only on two grounds —

  1. that the subject is in the State List, 

  2.  it violates fundamental rights. 

  1. Is invoking parliamentary powers on agriculture consistent with the scheme of federalism and spirit of the Constitution? 

  2. Does Parliament have the power to enact laws on agricultural markets and lands?

  3. Should the Constitution have been amended before enacting these laws?

These are some of the questions that will be raised in the petitions challenging the constitutionality of the Acts.

 

As per Ram Krishna Dalmia v Justice S R Tendolkar (1958) and other judgments, the Supreme Court will begin hearings after presuming the constitutionality of these laws; therefore, the burden on states and individuals who challenge these Acts will be quite heavy. 

 

Update: It is to be noted that the Presumption of Constitutionality is only made regarding laws enacted after the commencement of the Constitution of India. (Vide Navtej Singh Johar and Joseph Shine where the court struck down colonial laws as unconstitutional).

 

Generally, the Supreme Court does not stay the implementation of parliamentary laws. (CAA and UAPA were not stayed.)

‘APMC Complementing Act’ , ‘The Freedom of Food Stocking by Agribusinesses Act’ and Contract Farming Act’ do not mention, in the Statement of Objects & Reasons, the constitutional provisions under which Parliament has the power to legislate on the subjects covered.



At this juncture, another question is begs itself to be addressed on account of its indispensability to this subject, that is;

Where is Agriculture in the Scheme of Legislative Powers?


Terms relating to agriculture occur at 15 places in the Seventh Schedule.

  • Union List: 

Entries 82, 86, 87, and 88 in the Union List mention taxes and duties on income and assets, specifically excluding those in respect of agriculture.

  • State List

In the State List, eight entries contain terms relating to agriculture:

  1.  Entry 14 (agricultural education and research, pests, plant diseases); 

  2. 18 (rights in or over land, land tenures, rents, transfer agricultural land, agricultural loans, etc.); 

  3. 28 (markets and fairs); 

  4. 30 (agricultural indebtedness); 

  5. 45 (land revenue, land records, etc.); 

  6. 46 (taxes on agricultural income); 

  7. 47 (succession of agricultural land); and 

  8. 48 (estate duty in respect of agricultural land).

  • Concurrent List : 

  1. Entry 6 mentions the transfer of property other than agricultural land; 

  2. 7 is about various contracts not relating to agricultural land; and 

  3. 41 deals with evacuee property, including agricultural land.

 

Observations : 

  1. It is clear that the Union List and Concurrent List put matters relating to agriculture outside Parliament’s jurisdiction, and give state legislatures exclusive power. 

  2. No entry with respect to agriculture in the State List is subject to any entry in the Union or Concurrent Lists.

 

So, in this case, how is the state empowered to enact on Agriculture which clearly is a State Subject?

Here’s the catch :  Production, supply, and distribution of goods subject to the provisions of entry 33 of List III.

Entry 33 of the Concurrent List mentions trade and commerce, production, supply and distribution of domestic and imported products of an industry over which Parliament has control in the public interest; 

  1. foodstuffs, including oilseeds and oils; 

  2. cattle fodder; 

  3. raw cotton  

  4. jute. 

  • Moreover, owing to Article 249 of the Indian Constitution, the centre has the power to legislate items even from the state list if the national interest necessitates it. 

  • It is also to be noted that the ruckus in Rajya Sabha and the unparliamentary behaviour of the legislators cannot be challenged in the Supreme Court of India owing to the proscription of Courts not to inquire into proceedings of Parliament vide Article 122 (Courts not to inquire into proceedings of Parliament)

 

Observations : 

  1. The Centre could, therefore, argue that it is within its powers to pass laws on contract farming and intra- and inter-state trade, and prohibit states from imposing fees/cesses outside APMC areas.

  2. However, like education, farming is an occupation, not trade or commerce.

  3. Therefore, if foodstuffs are considered synonymous with agriculture, then all the powers of states in respect of agriculture, listed so elaborately in the Constitution, shall become redundant.

  4. However, some experts make a distinction between agricultural “marketing” and “trade”. Agriculture per se would deal with everything that a farmer does — right from field preparation and cultivation to also sale of his/her own produce. The act of primary sale at a mandi by the farmer is as much “agriculture” as production in the field. “Trade” begins only after the produce has been “marketed” by the farmer.

  5. Going by this interpretation, the Centre is within its rights to frame laws that promote barrier-free trade of farm produce (inter- as well as intra-state) and do not allow stockholding or export restrictions. But these can be only after the farmer has sold. Regulation of first sale of agricultural produce is a “marketing” responsibility of the states, not the Centre.

(Part 1A in Next Post)

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