Many petitions challenging the constitutional validity of the farm laws are pending before the Supreme Court as the government continues to try to 'explain' the hastily enacted laws to farmers. As the farmers continue to agitate demanding that the laws be repealed, MEGHA KATHERIA examines what makes the laws unconstitutional and the move undemocratic.
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The Bharatiya Kisan Union has approached the Supreme Court to challenge the constitutional validity of the three farm laws. Many State Governments, including Kerala, have also announced that they shall challenge the bills before the court.
This comes after talks between the farmers' delegation and government came to a standstill.
While the government has proposed amendments to the laws, the farmers have unequivocally rejected these amendments, holding steadfast to their demand for complete repeal.
An Indian Express report quoted a top government official saying, "we have yielded."
"We have given the assurances that the farmers were asking for," the government official added.
However, farmers argue that the demand to repeal the laws was never off the table.
"When a law goes wrong in its objectives, then the provisions will also be wrong. The list of all the problems is so long that it is not worth keeping the law. A bad law will only become worse," said Kavitha Kuruganti, the only woman in the farmers' delegation, according to a report by The Hindu.
“Questioning the timing of these laws- passed during the height of a pandemic, Sainath said, "The captive intellectuals of this regime and the media in fact wrote editorials saying never waste a good crisis or that this is the time to ram through the times. Some even said that India is having its second 1991 moment."
Unsurprisingly, many in the mainstream media are spinning a narrative that portrays the farmers as unreasonable and the government as accommodating.
This spin is not new. It is a spin that the government has been propagating for days.
In a press meet organised by a conglomeration of organisations on December 2, celebrated development journalist P Sainath had called out the media for its condescending attitude towards farmers.
"In the last week, there have been about seven editorials that I have seen. They have come to the position that the government needs to talk to them because they don't understand. There is an enormous amount of condescension because these dehatis don't understand and the laws need to be explained. All the editorials say that these are good laws that should be implemented," he said.
Questioning the timing of these laws- passed during the height of a pandemic, Sainath said, "The captive intellectuals of this regime and the media in fact wrote editorials saying never waste a good crisis or that this is the time to ram through the times. Some even said that India is having its second 1991 moment."
Speaking at the same press meet, activist Kavitha Krishnan said, "Making laws for farmers without talking to the farmers is a dictatorial move. Then, when they come to you and tell you what their issues are, you instead want to explain the laws to them."
Meanwhile, multiple petitions are pending before the Supreme Court challenging the validity of the Farm Bills. States such as Kerala, Punjab and Chattisgarh have announced that they will move the apex court to challenge the centre's overreach into agriculture which falls under the State List.
The Constitution of India divides different subjects between the Union and State governments under the Seventh Schedule. While they respectively possess exclusive legislative domain over subjects in their lists, both the Union and State governments can pass laws in subjects mentioned under the Concurrent List. In case of a clash between Union and State laws under the subject of the Concurrent List, the central government's law will prevail.
The Centre has justified its move citing its power under the Concurrent List to legislate on aspects of "trade and commerce".
“Talking to The Leaflet, constitutional law expert Senior Advocate Mohan Katarki said, "Agriculture is a State subject. However, it seems the Centre is banking on Entry 33 of List III. But this entry which talks of "Trade and commerce in …" doesn't include "Markets" namely trading places or platforms. "Markets" is specifically mentioned as a State subject in entry 28 of List II. Therefore, the Farmers Produce Trade and Commerce Act is clearly outside the competence of Parliament."
In fact, soon after the farm bills were passed, many media houses published opinion pieces stating that the centre was well within its rights to legislate on the subject.
Bloomberg Quint quoted Senior Advocate Rakesh Dwivedi saying, "The real aspect is that these laws deal with how farmers can sell. It enlivens the choice and in pith and substance deals with trade and commerce and production. It has nothing to do with agriculture."
However, in an interview with Newslaundry, Balbir Singh Rajewal, chief of the Bharatiya Kisan Union's Rajewal faction pointed out, "Farmers don't trade. They have no relation to trade. They market their goods and marketing is again a state subject."
Talking to The Leaflet, constitutional law expert Senior Advocate Mohan Katarki said, "Agriculture is a State subject. However, it seems the Centre is banking on Entry 33 of List III. But this entry which talks of "Trade and commerce in …" doesn't include "Markets" namely trading places or platforms. "Markets" is specifically mentioned as a State subject in entry 28 of List II. Therefore, the Farmers Produce Trade and Commerce Act is clearly outside the competence of Parliament."
The governments of Punjab, Chhattisgarh and Rajasthan have drafted their own Farm Bills to amend the central legislation. Many have also criticised the state amendments for not addressing the issues of MSP and other concerns of the farmers. Notably, Rajasthan's bills have been put on hold by the Governor.
"The amendments passed by the states are prima facie legal in my view. They derive this power from the State list," said Katarki.
“Opposing the amendment, T T Krishnamachari said, "At the same time, agriculture happens to be the principal industry in this country, and practically one of the main functions of the State, and beyond taking certain powers for the purpose of coordination, I do not think the Centre is at all capable of handling this vast problem."
In the past, many experts have argued in favour of shifting agriculture from the State list to the Concurrent list.
Incidentally, this was discussed by the Constituent Assembly as well.
Shibban Lal Saxena had moved an amendment to include agriculture under the Concurrent List. He argued, "What I really want is that agriculture and land revenue systems all over India should be amendable to planning on an all-India scale."
Cautioning against its inclusion in Union List, he reasoned, "I do not want them to go to List I, but they should be put in List III so that the Centre will not interfere with the States and will only advice and co-ordinate their activities."
Opposing the amendment, T T Krishnamachari said, "At the same time, agriculture happens to be the principal industry in this country, and practically one of the main functions of the State, and beyond taking certain powers for the purpose of coordination, I do not think the Centre is at all capable of handling this vast problem."
“As per the Inter-State Council's Report of 2015, the states had sought for enlargement of their jurisdiction in agriculture that was constricted by some entries in Union and Concurrent Lists.
He informed the Assembly that the Drafting Committee had put forth a similar proposal to Provincial Ministers but faced general resistance. A resistance that still exists today.
At the press meet, M G Devasahayam, former Chief Secretary, Government of Haryana, observed, "The agriculture in Punjab and Haryana is completely different from agriculture in Tamil Nadu and Kerala. Then how can there be one central law to regulate it all?"
As per the Inter-State Council's Report of 2015, the states had sought for enlargement of their jurisdiction in agriculture that was constricted by some entries in Union and Concurrent Lists. The report observed, "Planning and coordination of agricultural development is a matter of common concern to the Union and the States. Obviously, this aspect cannot be wholly left to the individual States. Indeed, it requires a cooperative endeavour between the two levels of government."
“Balbir Singh Rajewal said, "Unfortunately, the image of the Supreme Court is such that people have lost their confidence in the judiciary. The way the former Chief Justice of India accepted the Rajya Sabha seat completely destroyed whatever was even left. Otherwise, if the Supreme Court had taken suo moto notice then these Acts wouldn't have lasted for even two days.
Moving agriculture to Concurrent List will give the centre clear superseding powers over the state, unless the President grants assent to the State Act. "In principle, the final power must lie with someone, either centre or state. There should be finality in governance. It can't be ambiguous," said Katarki.
While the Supreme Court had issued notice to the Centre in one of the petitions challenging the Farm Bills back in October, the farmers have little faith of any positive outcome despite having a strong case.
Balbir Singh Rajewal said, "Unfortunately, the image of the Supreme Court is such that people have lost their confidence in the judiciary. The way the former Chief Justice of India accepted the Rajya Sabha seat completely destroyed whatever was even left. Otherwise, if the Supreme Court had taken suo moto notice then these Acts wouldn't have lasted for even two days. They would have been declared void immediately. It is because the Supreme Court did not play its role that farmers had to agitate on a nationwide scale."
The farmers feel let down by all the four pillars of democracy.
With the ball in the farmers' court, one waits to see what will happen next. But one thing is clear, the agitation is not going to die down any time soon till the government truly pays heed to their voices.
(Megha Katheria is a lawyer turned legal journalist and a sub-editor with The Leaflet. Views are personal.)