09.02.2021
Earlier, I had explained how masses
are generally opposed to any beneficial legislation ( for example – dowry prohibition, sati prevention were as vehemently opposed
in the Pre – independence time as rights of muslim women in the 70s and very
recently in abolition of triple talaq).
Whether we need FARM ACTS 2020( AGRICULTURAL REFORMS) ?
1. Even
though, on earlier occasions and even now, I have spoken about how scientists
like President of India APJ Abdul Kalam with Prof. S.K Sinha and Dr. A Sivathanu
Pillai suggested markets, cryo- cold storage near farms, modernization of
mandies, automated cleaning of mandies, modernization of rice mills, vacuum storage,
faster processing, packaging industries near farming sites, technologically
advanced irrigation, seeds, fertilisers, rural connectivity, better roads, post
harvesting SILOS, cultivation management, electronic sensors, electronic weighing
machines, synchronization of policies with DRDO, ICAR, ISRO - SLV – 3. The need for reform in markets (
mandies ) because of GATT, WTO and over all affect on agrarian sector has to be
brought about.
2. The economists across the political spectrum like Montek Singh Ahluwalia, Arvind Panagariya, TCA Ranganathan, TCA Srinivasa Raghavan, Vijay Kelkar, Ajay Shah, Dr. Manmohan Singh, different Planning commissions, Committies on Agricultural reforms have suggested abolition of MSPs, Industrialisation of agrarian sector, free market, boost exports.
I am sharing links of my previous blog on para 2 in more detail along with the link I found very comprehensive as suggested to me on twitter by someone.
http://gnrlaws.blogspot.com/2020/09/farm-laws-2020.html
https://www.orfonline.org/research/intellectual-biography-india-new-farm-laws/
In my humble opinion as a student of Constitutional Law, I feel the Parliament has passed laws on subject matters exclusively in the domain of the States and even in a quasi – federal unitary Constitution it will not stand the test of constitutionality.
Initially, I presumed that the Parliament has passed these laws by two- thirds majority therefore its constitutional.
I revisited the subject again after 26th January 2021 and went back to the basics. Therefore, I am opening up this discussion of Constitutionality of Farm Acts 2020. Even though in past all political parties endorsed them does that mean they stand the test of Constitutionality ??
Let's examine
Schedule
VII LIST I (Union List)
After a thorough reading of all entries in the Union list, it can be seen that there is no entry corresponding to agriculture, fisheries, livestock, (land revenue). Union list is mostly to do with international relations, territories, taxation, industries, etc.
LIST –
II State list
Agriculture, fisheries, livestock, markets, fairs, cattle, industries, trade, commerce, land revenue being an exclusive state subject on list II, entry – 14,15,16,21, 45 in Schedule VII of the Constitution of India can only be legislated by the State Governments.
LIST III
Concurrent List
Entry 33
– “ Trade and commerce in, and the production, supply and distribution of,-
(a)
the products of any industry where the control of
such industry by the Union is declared by Parliament by law to be expedient in
the public interest, and imported goods of the same kind as such products…..”
Entry 33 – allows legislation of parliament in state subject of agriculture only in very limited domain like oilseeds, oil, cattle fodder, cotton, jute.
Please, understand that as of now agrarian sector is largely exempt from taxation.
In other words 70% of the population is not directly taxed ( IT Act). But loan waivers of farmers are through tax-payers money. The Country simply cannot afford to give largescale subsidies. Subsidies are a stop gap measure for short term, in India the same has been extended indefinitely for the longest time due to lack of political will and votebank politics ( much like politics of caste & religion based reservation).
Therefore, as per the Scheme of Constitution
from Article 245 to 258A, in
my humble opinion the Parliament of India did not have the power to legislate
on matters of agriculture, fisheries, livestock, veterinary, etc strictly under
List II.
Article 246 limits the Power of
Parliament to pass laws only with respect to subject matters in Union list and
Concurrent List.
Article 248 read with Article
254 residuary power of Parliament only allows it to legislate in a subject
matter which is not enumerated in List
II and List III. Here, agriculture is exclusive list II subject.
As per Article 259 Parliament
can only legislate if the Council of
states ( Rajya Sabha) so ask for such a legislation by way of a resolution and
this resolution can only be in force for a period of 6 months to 1 year.
As per Article 250 only by way
of Emergency can Parliament pass laws on subject matters exclusively in the
domain of State list.
2 or more states can ask the
Parliament to legislate on a particular state subject ( article 252)
Alternatively, can States
themselves pass an act to Validate a Central law ? Yes.
What will be the fate of such a
central law, if some other state challenges it before the Supreme Court and the
Supreme Court strikes it down ?
The Farm Acts 2020 may be the
need of the hour but in pith and substance are a subject matter exclusively in
the domain of the state legislature and not the Parliament.
In my humble hypothesis, 2 out
of 3 Farm Acts are nothing but colourable legislation with the intention
of industrializing the agrarian sector and thereby bringing it under the ambit
of central taxation. Every Political party will benefit when ambit of taxation
increases. It means more revenue generation for the Governments.
The Essential Commodities Act 2020
amendment will stand the test of constitutionality as it in entry 34 of List
III.
The online trade and commerce
Act 2020 which directly affects the agrarian sector but may or may not stand
its ground. One way of bypassing Contitutional limits would be to say that its
enabling trade and commerce, but at what cost ? By encroaching legislative
sphere of State Legislatures (APMC acts etc).
The Farmers’ Protection &
Empowerment Act 2020 though very thoroughly drafted and on the face of it
empowering, does in fact legislate in exclusive domain of state list.
Here farming produce has broader definition that the one against Concurrent list entry 33 A “foodstuff”. Thus the farm acts possibly cannot stand the test of Constitutionality as such a wide sweeping interference in a predominantly agriculture subject cannot be usurped in the garb of trade and commerce.
Agricultural, fishery, livestock is not traditionally trade and commerce. Farm laws also can be seen as an attempt to industrialise the same to cover it under union subject matter indirectly.
Therefore, as much as we may need
these laws as a boost to agrarian sector, the union govt has limited power to
legislate. Such wide amplitude won't stand test of Constitution unless a Constitutional amendment to that effect in entries to corresponding list is made. Even that amendment would be subject to judicial scrutiny.
Can Parliament amend the entries in state list or will it violate the basic structure of federal Constitution ? Perhaps not.
Interested, states can validate these central laws as enabling or pass their respective laws.
Solution :-
States can adopt the Central
Farm Acts or pass their very own farm acts :-
After extensive research on reports
of Committees, scientists and economists of great integrity and repute I do
feel agrarian reforms are need of the hour and factors crippling economic growth
of farmers should be removed. But the same can only be done by Constitutional
means and in this case through state legislatures.
In my humble opinion, it is
better if states pass their own agricultural laws inconsonance with the recommendations
of the expert committees in last 2 decades so that every state can progress at
a much rapid rate. Thereby, the entire nation can prosper together.
https://youtu.be/PnDfxHMAwYs
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