The Union Government may have had to face political brickbats as a result of the radical changes introduced by way of The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (hereinafter, ‘Produce Trade Act’) and The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 (hereinafter, ‘Price Assurance Act’), however, with the petering out of the initial political outrage against the Modi government’s farm reform measures, the opposition has decided to alter the battle field from the highways and rail-tracks to the Hon’ble Supreme Court.
In an earlier piece, I had traced the long-drawn process of reforms in agri-marketing as initiated by the Modi Government right from the initial years of its first term as have culminated in the promulgation of the ordinances (subsequently the ‘Act’ as collectively referred to as ‘farm reform laws’). In fact, I had argued that not even the greatest critic of the said laws can remain impervious to the benefits of dismantling the artificially constructed monopsony of the Agricultural Produce Marketing Committees (APMCs), colloquially referred to as mandis. Nevertheless, keeping ones biases aside, the endeavour herein is to evaluate the tenability of the constitutional challenge to said farm reform laws.
Before venturing into the specific grounds of challenge as before the Apex Court, it ought to be definitively clear that legislations duly passed by the Parliament or State Assemblies cannot be brought into question unto their stated or intended intentions, purposes or motives barring prima facie unreasonableness, irrationality and incompetence of the legislature enacting such laws. Additionally, presumption as to constitutionality of lawfully enacted statutes is a settled principle of law and must be taken into account by constitutional courts when considering the challenges thereof. The mere possibility that a law may be abused does not render it unconstitutional ex facie and thereby any under-inclusion, exclusion and/or preclusion emanating from such laws need not need be scientifically pure and all-embracing; considering the same, Parliament is perfectly empowered to promote, dismantle, alter and/or restructure inter-state trade and commerce.
The petitions as presented before the Apex Court challenge the supposed violation of the right to ‘equality before law’ under Article 14, ‘right to life’ emanating from Article 21 and ‘prohibition of traffic in human beings and forced labour’ vide Article 23. It has been erringly argued thereof that the combined effect of the farm reform laws would be to reduce the labour of the farmers to that of begaar, i.e. forced labour.
Not only is the above submission founded on perceptions and conjectures, no cause of action is forthcoming by way of these surmise-driven averments. Any submission that these laws are adverse to farmers’ ‘choice’ is disingenuous at the very least. Impugning these laws on perceived dismantling of the mandi system and the minimum support prices (MSP) is tantamount to unwarranted fearmongering and to that extent suffers from patent falsity emanating from political considerations and compulsions.
Nevertheless, what warrants deeper inquisition is the petitioners’ assertion challenging the legislative competence of the Parliament to enact these laws and the supposed encroachment into the legislative field of the State Legislatures. Briefly stated, Part XI of the Constitution read-with the VIIth schedule outlines the ‘legislative relations’ between the Parliament and the Legislatures of States. Therefore, while Parliament enjoys plenary powers to enact laws as to legislative subjects vide List-I (Union List), the State Legislatures enjoy a similar competence vis-à-vis legislative subjects of List-II (State List). Insofar as List-III (Concurrent List) is concerned, while both the Parliament and the State Legislatures can legislate, Article 254 manifestly vests primacy unto laws enacted by the Parliament over those by State Legislatures.
The challenge before the Supreme Court stands on the supposed encroachment that the farm reform laws make into the exclusive legislative field of the States. While it can be no one’s case that the powers of the States to make laws concerning ‘Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases’ are exclusive, the purveyors of such an averment wholly fail to take into account that the Parliament may, to the complete exclusion of the State Legislatures, make laws concerning ‘Inter-State trade and commerce’. Though an overlap between the two entries is evident, the law concerning the plenary powers of legislation has evolved over time to provide the widest legislative amplitude to the Parliament, albeit with certain safeguards.
In any federal polity, enumerating legislative competence in watertight compartments is a near impossibility. Therefore, despite the fact that the Constitutional provisions concerning the dichotomy at hand provide a more extensive amplitude to the Parliament, where two entries, one being of the Union List and the other of the State List purportedly overlap and there is scope for conflict regarding the powers emanating from such entries, the courts attempt to construe them harmoniously and read them together such as to avoid a conflict. In arriving at such harmony, one entry may be watered down to make way for the other one when it appears that the clear adjunct of the concerned entry includes the concomitant subject of the legislation.
Concerning the challenge before the Supreme Court, the farm laws are clearly within the competence of the Parliament by way of the above-specified Entry 42 (Inter-State trade and commerce).
Furthermore, upon its true construction and interpretation, the ‘pith and substance’ of the above-enunciated farm laws, taken as a whole, is well-within the competence of the Parliament and it is well settled that any incidental encroachment or invasion into the legislative field of the State Legislatures, although none exists concerning the farm reform laws, would not make such laws ultra-vires and unconstitutional.
In addition to the above, a common refrain against the said farm laws, especially the Produce Trade Act has been that in legislating upon ‘intra-state trade’ an overt encroachment has been made into the legislative field of State Legislatures as per Entry 26 (Trade and commerce within the State subject to the provisions of entry 33 of List III) and Entry 27 (Production, supply and distribution of goods subject to the provisions of entry 33 of List III). The same however is specious and ex facie untenable considering that the same has ostensibly been made subject to Entry 33 of the Concurrent List.
There is legislative precedence unto Entry 33 of the Concurrent List in the much maligned Essential Commodities Act, 1955 as was enacted by the Parliament towards ‘control of the production, supply and distribution of, and trade and commerce, in certain commodities’. Therefore it can be no one’s case that the Parliament lacks legislative competence to enact the present farm reform laws, even to the extent of ‘intra-state trade’. The same is further bolstered by way of the scheme of our Constitution, whereby even if one assumes an apparent conflict between the farm reform laws and the various state APMC legislations, the latter shall be deemed to be repugnant and void to the extent that the concerned field of legislative competence has been covered or occupied by the Parliamentary laws.
In conclusion therefore, once the legality of the said reforms is separated from the politics, it transpires that any challenge thereof is untenable and liable to be rejected. In so far as the political battle-field is concerned, an authoritative verdict from the Supreme Court will surely be a shot in the arm for the ruling dispensation.
Unlike the challenge to the Citizenship (Amendment) Act, 2019, the judiciary ought to dispose of the matter at the earliest such that unwarranted speculation is put to rest and the nation may move ahead with reforms which if implemented in their true spirit and form are bound to be truly transformative for a vast majority of the marginalised farming sector.