There is a plethora of debates and articles already been published in the media on the Farm Laws, approved in the Lok Sabha on 17th of September 2020 and passed in the Rajya Sabha on 20th September 2020. Tens and thousands of farmers have been protesting against the contentious farm bills on the borders around national capital for more than two months now. Although there has been a lot of discussion on the core concept of these laws and what it aims to give and take, there seems to be something grossly missing our field of vision.
I, in no way, know better than the agriculturists, economists and agriculture academicians, but I sure do know a little about the legality of these laws and the discussion that is being talked about in a minimalist quantum.
Did the Parliament have the power to pass the bills? Does the Centre have the potency to make laws on agriculture? What can be done by the Judiciary? Wrapping up the inception of this article, these are the core issues I must raise today.
Federalism is a part of the basic structure of our constitution. It cannot be amended, cannot be revoked and can, in no way, be knocked down without facing a Judicial Review by the Supreme Court.
These laws are a stark attack on the federalism inherent in our constitution.
The 7th schedule of the Constitution allocates powers between the Centre and States. It incorporates three lists- The Union list, State List and Concurrent List. The Union List consists of 97 items which are the exclusive property of the Centre, the State List consists of 66 items exclusively for the State to deal with, and the Concurrent List has forty-six items over which both the Centre and the States have competence.
Entries 1, 86, 87 and 88 of the Union List exclusively give the Centre a ruling over taxes on incomes, taxes on the capital value of assets (exclusive of agricultural land), and duties in respect of succession of property other than agricultural land. Entries 14, 18, 30, 46, 47 and 48 of the State List gives powers to the State to deal with agricultural education and research, land rights, agricultural loans, taxes on agricultural income, duties in respect of succession of agricultural land and state duty in respect of agricultural land. The Concurrent list talks about the transfer of property other than agricultural land, contracts (partnership, agency, carriage, but not agricultural contracts.)
Thus, it can very well be concluded that the State has a right on agriculture over the Centre.
However, Entry 47 of the Constitution provides grounds on which the Centre can intervene in some circumstances. The centre can at the most aid the state ratifications. The States should have been, therefore, consulted before bartering these ordinances into acts.
Another question we must ask was the need of the government to bring these laws as ordinances. What was so urgent about it? Why, if they have proposed to postpone the implementation of these bills to the farmers precisely for 18 months, were they brought as ordinances in the first place? What was so emergent about the changes these laws offer that it had to be brought without the consent of the legislature? For those who don’t know, ordinances can only be brought during a proposed threat or the time of emergency. Oxford defines an ordinance as an ‘authoritative order,’ which indeed is what the government did.
I would call it a murder of democracy.
What happened in the Rajya Sabha can never, ever be endorsed by someone who firmly believes in the spirit of democracy. What happened in the Rajya Sabha was a black taint on the legislative probe in independent India. The bills were passed by a mere voice vote despite the opposition MPs exhorting the speaker to offer them a division or a recorded vote. The adamance of the house and its unwillingness to scrutinize the bills was quite visible, which is absolutely unconstitutional. Article 100 says that all the members of the either house sitting should be given a free and fair voting right. Have they forgotten that lawmaking is an egalitarian process, infact, something that needs to be dug routinely?
The apex court should’ve looked into the way these bills were passed in the parliament rather than forming a Panel Committee to look into the laws. Most on the Panel Committee have been seen backing the farm laws ever since the agitation started. Many academicians like Pratap Bhanu Mehta have criticized the court’s action. The work of the honorable court is not the intervene between the farmers and the government but to interpret the Constitution which is seen to be grossly violated in the present times.