Agricultural law: Will Congress-ruled states reject them?

Congress Party President Sonia Gandhi has asked the Congress-led state governments to make a law at the local level under Article 254 (2) of the Constitution, so that the agricultural law can be made ineffective.

Congress leaders also referred to former Union Minister Arun Jaitley while mentioning this Article of the Constitution as Jaitley had mentioned this Article of the Constitution in one of his blogs in 2013.

Congress leader Jairam Ramesh wrote on Twitter, “Finance Minister Arun Jaitley had asked the states to use the Article 254 (2) of the Constitution to nullify the provisions of the Land Acquisition Act, 2013. As Leader of Opposition in Rajya Sabha He also fully supported it. Now the state can follow the same advice to compensate for the losses caused by the Agricultural Acts (which have now become law). “

State governments are deciding to go to the Supreme Court against these laws. Along with this, questions are also being raised about the constitutionality of these laws.

In such a situation, three questions arise:

First- What is Article 254 (2) of the Constitution? And can the law passed under Article 254 (2) of the Constitution make agricultural laws ineffective?

Secondly, can the state governments go to the Supreme Court and cancel the laws passed in the Parliament?

Thirdly – Why are the constitutionality of agricultural laws being questioned?

Can state governments survive the agricultural law?

Protests in Punjab and Haryana are not being called to a halt due to agricultural law. There is BJP in Haryana and Congress in Punjab.

With the new agricultural laws, there are signs of a crisis on the income of both the states. Under the current system, Punjab gets a profit of Rs 3,500 crore and Haryana gets Rs 1,600 crore. In such a situation, it can prove to be a major setback for the state governments stricken by the Corona epidemic.

But the question arises whether Article 254 (2) of the constitution gives the powers to the states with the help of which they can make such laws so that these agricultural laws in their state are neutralized?

The answer is that yes, it is possible.

It has been made clear in the Indian Constitution that on which subjects the Union and the States have the right to make laws.

That is why three lists have been made in the constitution, including a union list (the subjects on which the central government has a monopoly to legislate), the state list (the subjects on which the state governments can legislate) and the concurrent list (the list on which the state And central governments can make laws)

The article 254 (2) which Congress President Sonia Gandhi has said to use, is related to the topics included in the concurrent list.

Article 254 (2) of the Constitution clearly states:

If a law is made on behalf of the State Legislative Assembly in relation to the subjects included in the Concurrent List, which is against the provisions of the earlier law made by Parliament, or the existing law in relation to that subject.

The law made by the State Legislative Assembly has been reserved for the consideration of the President and the President gives his assent to it, in which case the central law will be ineffective and the state law will be effective. “

But the condition with this article is that the state governments need the approval of the President for these acts. With this, even if the President gives his assent, the central law will not be effective only in that state. In such a situation, each state will have to make its law and get the approval of the President.

Can State Governments Go to Supreme Court?

Constitution expert Faizan Mustafa believes that state governments can go to the Supreme Court in this matter.

He wrote in his article in the English newspaper Indian Express, “The Union of India vs HS Dhillon (1972) case has revealed that the constitutionality of parliamentary laws can be challenged on only two grounds – the first is that the subject of the law The state is on the list or it violates basic rights. “

Explaining the feasibility of going to the Supreme Court, he says, “Once a law has been passed in Parliament, when the constitutionality of that law is challenged, usually the Supreme Court does not impose a stay on it. UAPA and CAA law I have come to know about this.

The court did not grant a stay order on both these laws. In such a situation, this too will not stay. And this is a constitutional issue, will go to the bench of five judges, it will take many years for this case to be final. By then, the law of the Center will be implemented.

“As the central government is saying that this will benefit the farmers, and even if the farmers are benefited, then when the Supreme Court will hear the case of the central government, then the center will become very strong.” Normally, no case reaches the hearing before four to five years on the bench of five judges. “

Unconstitutional?

Faizan Mustafa says, “Agriculture market is the subject of the state list which is listed as Markets and Fairs in Entry No. 28. The Supreme Court has earlier stated in the Indian Tobacco Limited case that the state is cessing the market (cess) And the right to impose duty.

If the right to the state is accepted once, then obviously the center does not have the right. And if the Center does not have the authority then a constitutional crisis will arise between the Center and the states. “

He explains the legal aspect of this issue, saying, “The issue here is that the 33rd entry of the concurrent list is about trade and commerce and food stuff. In spite of this entry, three committees of the government have said this. That the agricultural market should come in the concurrent list. This meant that they knew that the provisions of food items and trade-commerce were not going to work. And they would not give legal basis to the law of the Center.

“The second thing is that agriculture is a profession, it is not a trade or business. And if agriculture is considered as trade or business, then the provision of Inter State Trade and Commerce will come 301 and all the rights related to agriculture of the state will be abolished. And this will put a big question mark on our federal system. “

Are these agricultural laws attacking the federal system?

These agricultural laws passed by the central government are being said against India’s federal system.

Faizan Mustafa explains, “Before our constitution was created, it has been said that this will be a federal system constitution. If we accept the federal system, we would not have a partition. Countries which do not accept the federal system, They are divided. Well now the division is done.

Even after this, it kept happening that we would have two types of governments here. One state government and one central government. In the issues of national importance, the Central Government will have the power to make laws. State governments will be able to make laws on the issues of local importance. There will be some issues on which both laws can be made. But if there is a conflict between the two laws, then the central law will apply.

“Now see that the items in the Union list on which Parliament has the right to make laws, it is clearly stated in the Parliament that the right to make laws on agriculture will not be with the Parliament. The Union list also states that the Central Government on income tax Can make laws but does not include income earned from agriculture. “

“Wherever in the Union List, when it comes to agriculture, the Constitution clearly says that Parliament does not have the right to legislate on it. Because agriculture was considered a local subject. It can be seen that in the state list All the topics related to agriculture have been included, they have not been subjected to the Center or under the concurrent list.

“The 14th subject in the state list is education and research related to agriculture, protection from pests and diseases caused by plants.” After this, there are things related to the right over agricultural land in the 18th subject. Now there is talk of contract farming and right over land, but if the subject related to the right to land is in the state list, then the state government has the power to make laws on it. How can the central government make laws in this? “

A big topic of controversy regarding these laws is related to the trade area, according to which farmers can sell their crops even beyond the APMC.

Faizan Mustafa believes that the central government does not have the authority to make such an arrangement.

He says, “In this case, the 28th topic of the state list is very important, which talks about markets and fairs. (Now under the new laws), there is talk of buying and selling of agricultural crops. Now this crop Where it will be sold, in agricultural markets. And who has the right over agricultural markets, according to the constitution, of the state. Are these rights subordinated to the concurrent list or the union list? … not done. “

Faizan Mustafa says that in such a situation, the intention of those who made the constitution was that the state should get the rights on the matters of agriculture. And these laws put a question mark on those rights.