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

 

So more importantly,  what happens in the case of legislation that covers entries in two Lists?

  • In cases such as State of Rajasthan v G Chawla (1959), courts have used the doctrine of “pith and substance” to determine the character of legislation that overlaps between entries. 

  • The constitutionality of legislation is upheld if it is largely covered by one list and touches upon the other list only incidentally. 

  • But the Farm Acts go beyond that — they impinge on entries in the State List.

 

  1. ‘APMC Complementing Act’, 2020 flies in the face of Entry 28 of the State List (markets and fairs), and 

  2. ‘Contract Farming Act’, 2020 impinges on Entries 14, 18, and 46 of the State List, and Entry 7 of the Concurrent List (above).



The stand of the Judiciary :

  1. In interpreting the lists, the Supreme Court in State of Bihar v Kameshwar Singh (1952) invoked the doctrine of colorable legislation, which means ‘You cannot do indirectly what you cannot do directly.’, therefore if State Agricultural matters cannot be legislated by the center directly, then it would be prudent to extend the aforementioned logical consistency to the deduction that they cannot be legislated indirectly either. 

  2. In ITC Ltd v APMC (2002), the Supreme Court upheld the validity of several state laws relating to agricultural produce marketing and struck down the central Tobacco Board Act, 1975.

  1. It interpreted Entry 28 of the State List (markets and fairs) in favor of states, and rejected the Centre’s argument based on Entry 52 of the Union List(Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.) read with Entry 33 of Concurrent List(Trade and Commerce) that tobacco is an industry declared as being under the control of Parliament in public interest. 

  2. In its obiter dictum, the court further added that raw materials or activity that does not involve manufacture or production cannot be covered under ‘industry’.

So, as per the above analysis, it’s rather clear that this raises questions on the nature of federalism as a whole, so how does federalism factor into this arguement?

 

  • Federalism essentially means both the Centre and states have the freedom to operate in their allotted spheres of power, in coordination with each other.

  •  The Seventh Schedule of the Constitution contains three lists that distribute power between the Centre and states. There are 97 subjects in the Union List, on which Parliament has exclusive power to legislate (Article 246); the State List has 66 items on which states alone can legislate; the Concurrent List has 47 subjects on which both the Centre and states can legislate, but in case of a conflict, the law made by Parliament prevails (Article 254). 

  • Parliament can legislate on an item in the State List under certain specific circumstances laid down in the Constitution.

  • In-State of West Bengal v Union of India (1962), the Supreme Court held that the Indian Constitution is not federal. 

  • But in S R Bommai v Union of India (1994), a nine-judge Bench held that federalism was part of the basic structure of the Constitution. 

Obiter Dictum: “Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254… The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power,” it said.

In conclusion, we can say that Federalism, like constitutionalism and separation of powers, is not mentioned in the Constitution. But it is the very essence of our constitutional scheme

What is the government’s stated view on agricultural markets?

  • The committees headed by Ashok Dalwai and Ramesh Chand recommended that ‘agricultural market’ be entered in the Concurrent List. It is implicit in the recommendations that “foodstuffs” under Entry 33 of the Concurrent List do not empower Parliament to enact laws on agricultural markets.

  • On May 5, 2015, the government told Lok Sabha that the National Commission of Farmers (Swaminathan Commission) had recommended ‘agricultural market’ be added to the Concurrent List. On March 27, 2018, the government yet again told Lok Sabha that it has no intention of inserting ‘agricultural market’ in the Concurrent List.

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