Agricultural Politics by Politicians but What's the Law?

While the intent and rationale behind the three legislations might have been bona fide and in public interest, the laws, since their inception, due to various aspects and factors, ranging from their legislative history and complexities to the manner in which they were passed have been riddled with doubt, controversies and backlash

The passage of the farm bills has been met with tremendous scrutiny. Having been passed by a voice note in the Rajya Sabha, and the failure of the Deputy chairman to relay the request of the opposition to put the Acts to voting, saw a blatant violation of the procedure enumerated under the Constitution. This has subverted and hindered the democracy as well as the federal structure of the country.

The following components attempt to analyze the passed laws, and elucidate on subsequent consequences and reactions they received with their promulgation.

ANALYSIS OF THE IMPUGNED LAWS

The Farmer's Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020

The Act helps create a system where farmers and traders have the freedom to sell/purchase outside the APMC; promotes barrier-free inter-state and intra-state of produce; and provides framework for electronic trading and transaction platform along with guidelines. However, the Act weakens the APMC system and could act as a disadvantage to smaller farmers. Further, states will lose revenue as they will not be able to collect mandi fees.

The Farmer (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020

The Act provides farmers with the opportunity to enter into contracts with agri-business firms for sale of future farming produce at a pre-agreed price; ensures risk mitigation and flow of credit to the farmer or sponsor by linking farming agreement or insurance; and provide effective dispute resolution mechanisms to the parties entering into contract. However, due to corporate involvement, farmers will be the weaker party in farming contracts as they will not have the means to negotiate their demands, with the sponsors having an edge in entire dealing including in disputes.

THE ESSENTIAL COMMODITIES (AMENDMENT) ACT, 2020

The amendment removes certain commodities from the list of essential commodities, and allows the central government to regulate the supply of certain food items under extraordinary circumstances, which will help in stabilizing the prices. However, removing restrictions on the storage of some foodgrains may lead to more imports at cheaper prices affecting the domestic farmers.

It is clear that the agricultural laws passed are a clear infringement on the State's legislative rights and require immediate response and action to curtail the impact of the said infringement. It is pertinent to observe and understand the ways in which the various State Governments will be responding to the blatant violation of their legislating powers by the Central Government.

1. Taking a page from BJP's book: State Legislations via Article 254(2) of the Constitution

The Punjab Government passed three bills under Article 254(2) of the Constitution, which empowers the State Government to pass legislations in the matters listed under the Concurrent List, to limit the scope and impact of the impugned laws. This approach was subsequently adopted by the Rajasthan Assembly which too passed three bills, similar to the amendment bills passed by Punjab.

This recourse to negate or override a certain Centre legislation was observed in 2015, when the BJP government urged its ruling states to pass legislations to override the Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The three acts pave the way for exploitation and misappropriation by the corporations, through acts of not just commission, but of omission too: the Acts, on closer scrutiny, leave numerous things undefined and open to broad interpretation. State Legislations, under Article 254(2) of the Constitution, can fill the above-stated gaps and holes, and provide assistance to the farmers.

2. Bypassing the Central Law using pre-existing State Laws

The Central Law, eradicating state regulations and fees, instilled provisions for creation of new trade areas for selling and purchasing of crops. Rajasthan, circumventing the said law, using an administrative order under the Rajasthan Agricultural Produce Markets Act, 1961, designated all these new areas as state-controlled markets, by declaring the FCI warehouses as a "market area".

Since, the order does not amend the Central Law and exercises its powers under a pre-existing law to bypass certain parts and provisions of the former, which eradicates any scope of Centre discretion into the said action, which can then only be questioned in a court of law, and therefore, bypasses the Central legislations.

LEGISLATIVE COMPETENCE

Agriculture, with its components and subsidiaries, including 'trade and commerce' and 'markets and fairs' is primarily and majorly a state subject under the Seventh Schedule of the Constitution. Both, however, are subject to Entry 33 of the Concurrent List, which allows the parliament by law to declare any industry to be under its control if it is 'expedient in public interest', amongst other things.

The same has been applied by the Centre to bring the impugned laws into force. The overlapping framework with the State entries ensues suspicion towards its competence and validity, which was furthered by the manner in which these laws were passed in Parliament. Entry 33, with its extended scope, has been interpreted in a vastly novel manner wherein its history, context and intention has been ignored.

The Supreme Court has been asked to review the said legislations due to these suspicions. While adjudicating over a legislation overlapping between two entries, the Apex Court in State of Rajasthan v. G. Chawla held that the doctrine of "pith and substance" to determine the legislation's character will be applied and if it is largely functioning under one list and encroaching the other only incidentally. The encroachment of the Acts on the State List is clearly not incidental and is intentional. The precedent will weigh heavily if it is proved that the impugned laws do not fall under Entry 33 of the Concurrent List as was observed In ITC Ltd. v. Agricultural Produce Market Committee and Ors., wherein the Supreme Court upheld the validity of several state laws relating to agricultural produce marketing, and struck down the Central Act by interpreting Entry 28 of the State List (market and fairs) in favor of states.

CONCLUSION

While the intent and rationale behind the three legislations might have been bona fide and in public interest, the laws, since their inception, due to various aspects and factors, ranging from their legislative history and complexities to the manner in which they were passed have been riddled with doubt, controversies and backlash.

The Government will have to invite a more holistic approach with measures to prevent exploitation and loss to the farming industry and its subjects, and ensure that they work in harmony with the States to maintain the revered federal structure and the future precedents attached to the same.

Disclaimer – The views expressed in this article are the personal views of the author and is purely informative in nature.