Farm Laws: A Constitutional

Approach
By,
Roshan Jayakumar
 • The farmers protest is an ongoing protest
across the nation involving over 20 million (2

What is the nation-wide crore) protestors.

farmer’s protest? What • The aggrieved agricultural sector of India has

been agitating, with a spectacular display of
are the Farm Laws? unity across India, against the enactment of
three legislations late September, 2020.

The three laws are,

• The Farmers’ Produce Trade and Commerce (Promotion
and Facilitation) Act, 2020
• The Farmers (Empowerment and Protection) Agreement on Price Assurance and

Farm Services Act, 2020

• The Essential Commodities (Amendment) Act, 2020

 What are these three laws about?

PROMOTION AND EMPOWERMENT AND ESSENTIAL

FACILITATION ACT, PROTECTION ACT, 2020 COMMODITIES ACT
2020
intends to “promote efficient, "protects and empowers farmers to lays down that the Centre may
transparent and barrier-free inter- engage with agri-business firms, regulate essential food items such
State and intra-State trade and processors, wholesalers, exporters as cereals, pulses, potatoes,
commerce of farmers’ produce or large retailers for farm services onions, edible oilseeds and oils
outside the physical premises of and sale of future farming produce under extraordinary circumstances
markets.” at a mutually agreed remunerative such as war, famine, extraordinary
price framework in a fair and price rise and natural calamity.
transparent manner."
The main issues: MSP and APMC

MINIMUM SUPPORT PRICE (MSP):

For certain essential products, there is a minimum selling price (MSP) fixed by the
government. The traders can bargain and buy the products only above these minimum selling
prices. Government, through this system, aimed to ensure that farmers would get a fair and
reasonable price for their products.

AGRICULTURAL PRODUCE MARKET COMMITTEE (APMC):

(Mandis) that were earlier established by the State Governments to protect farmers against
exploitation by retailers or big corporate giants.
The main issues: MSP and APMC

AGRICULTURAL PRODUCE MARKET COMMITTEE (APMC):

• APMC systems currently have several issues that need to be addressed. Over time APMC
have gotten corrupted and license procedure to new traders was seen by APMC as a source
of bribes. Thus traders who paid and obtained licenses came to form cartels.
• This means an agreement will be reached among the traders on the price (for a particular
product) before the auction at a mandi starts.
• As a result, farmers are forced to sell their produce at a price set by traders without
auction. Farmers’ organizations have repeatedly called for this issue to be addressed. They
have not however asked for a scrapping of the mandis.
• The answer probably lies in Farmer Cooperative Markets or Consumer-Farmer Markets
 • With the current (Promotion and Facilitation)
Act, 2020 in place, farmers can theoretically sell
their produce in any market.

Do the farm bills • It opens the floodgates for corporate entities and
big traders to directly buy from the farmers from

Address the issues all parts of the country at lower rate without the
intervention of the government.

of APMC and • The farmers are bound to leave the APMC

mandis if they get a better rate outside of it.
MSP? Traders too will not prefer to buy goods through
the mandis.

• This is intended to weaken the APMC system.

SIMPLE ANSWER: NO
• Under this new law, the government does not
guarantee a minimum support price for trading
outside APMC mandis.
 Constitutional Validity
• The Constitution of India stipulates a Federal structure government, with one Central Government and
separate State Government.

• The Seventh Schedule of the Constitution lays down the subjects to be covered under the Union, State and
Concurrent List. In a situation where in both the Centre and States decide to formulate a law, the Central
law shall prevail.

• While formulating the three impugned legislations, the Central Government seems to have invoked Entry
33 of List III. Entry 33 provides that the Parliament can make laws in ‘public interest’ on matters of trade
and commerce, supply and distribution of industrial products.

• Entries 18 (rights in or over land, etc.), 28 (markets and fairs), 30 (agricultural indebtedness), 45 (land
revenue, land records, etc.) 46 (taxes on agricultural income), 47 (succession of agricultural land) and 48
(estate duty in respect of agricultural land) amply establishes Agriculture as a state subject.
 Violating the Federal Structure through
overreach
• The concurrent list that covers subjects for the consideration of the Centre and the States also have entries
that places agriculture outside the jurisdiction of the Indian Parliament.
• Entry 6 List III covers Transfer of property “other than agricultural land”; registration of deeds and
documents.” Entry 7 covers all contracts but “not contracts relating to agricultural land”.
• The actual confusion arises from entry 26 and 27 of the List II that states are subject to entry 33 of List III.
• Entry 33 empowers the Parliament to control trade and commerce, production supply and distribution of
domestic and imported products of an industry in public interest.
• List III, Central laws prevail, the Union Government can argue that there has been no encroachment of
jurisdiction.
• Industrial products (mentioned in entry 33) like edible oilseeds and oils, cattle fodder, raw cotton and jute,
cotton seeds fall under the ambit of the broad category of agriculture, then what is the need for all the State
list entries, placing agriculture under its List? It renders the said entries absolutely redundant.
 Doctrine of Pith and Substance

The Doctrine of Pith and Substance essentially helps to decipher the

character of a legislation that overlaps between two entries.

• In State of Rajasthan V Shri G Chawla and Dr. Pohumal 1959 AIR 544, the validity of the Ajmer
(Sound Amplifiers Control) Act, 1952 enacted by the State legislature was challenged and the
judicial Commissioner of Ajmer held that the Act fell within Entry No. 31 of the Union List and
not within Entry No. 6 of the State List (as was claimed by the State) and therefore ultra vires
the State Legislature.
• When agriculture largely falls under the State list, and is incidentally covered in the Concurrent
List, the farm laws seem to have been hastily passed by the Parliament.
Doctrine of Colourable Legislation

• This doctrine tests the competency of a legislature to enact a law. The main function of legislatures is to make
laws but when it legislates on matters outside its jurisdiction, a limitation in the form of ‘Doctrine of Colourable
legislation’ can be invoked.
• The courts too have recognised the parliament overreach at times, upholding the validity of State laws in the face
of Central laws. In ITC Ltd vs Agricultural Produce Market Committee AIR 2002 SC 852, the Supreme Court had
upheld the validity of state laws related to agricultural produce marketing and struck down the central Tobacco
Board Act, 1975.
• This case presented a conflict between the operation of two Acts. Parliament took the tobacco industry under its
control under Entry 52, List I and enacted the Tobacco Board Act. The Bihar Agricultural Produce Markets Act,
1960 was enacted by the State of Bihar referable to Entry 28 of List II which gives the State legislature the
exclusive power to legislate on Markets and Fairs.
• The Court observed that the setting up of markets areas, markets yards and regulating use of the facilities within
such area or yards by levy of market fee is a matter of local interest and would be covered by Entry 28 of List II
and thus within the legislative competence of the State.
Dispute Resolution

• Another legal loophole in the acts concern the right of the farmers to adjudicate in matters of dispute. Let us look
at the provisions of The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020.
• Section 13 provides “No suit, prosecution or other legal proceedings shall lie against the Central Government or
the State Government, or any officer of the Central Government or the State Government or any other person in
respect of anything which is in good faith done or intended to be done under this Act or of any rules or orders
made thereunder.”
• The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 has
similar clauses where the Central Government or the State Government are not liable to be prosecuted, to the
prejudice of the aggrieved farmers who will be pitched against rich corporate bodies.
• Section 18 of the Act states, “No suit, prosecution or other legal proceeding shall lie against the Central
Government, the State Government, the Registration Authority, the Sub-Divisional Authority, the Appellate
Authority or any other person for anything which is in good faith done or intended to be done under the
provisions of this Act or any rule made thereunder”.
• Section 19 bars the jurisdiction of civil courts to adjudicate on any matter pertaining to the farmers.
 Executive Overreach and denial of Justice

• Through these sections, the government has absolved itself from all responsibilities and grievances that would
need immediate attention. The phrase “any other person” in sections 13 and 18 of the Promotion and Facilitation;
and Empowerment and Protection Act is strangely unfortunate and wide, which could potentially include big
corporate companies, large retailers etc that also enjoy immunity from prosecution.
• The probability of a poor debt-ridden farmer fighting the system was bleak in the first place but at least there
was a door available. With these new drafted laws, the farmers are deprived of this as well.
• In Anita Kushwaha vs Pushap Sudan 2016 8 SCC 509, the Supreme Court had held that access to Justice is a
Fundamental Right guaranteed to citizens by Article 14 and Article 21 of the Constitution of India.
• As civil courts jurisdiction is ousted under these statutes, the parties contracting under these laws do not have the
privilege of approaching the judiciary even under a farming agreement, which ought to be governed by the
principles of contract law.
• A dispute involving civil consequences (contractual and commercial) cannot be adjudicated by SDM’s and ADM’s
that are essentially run by executive authorities. These are administrative bodies that lack the expertise to
comprehend the plight of the troubled farmers. The executive cannot put itself in the shoes of the judiciary.
Conclusion

• The three Farm Laws can be declared as not just economically and technically flawed
but also constitutionally Ultra Vires.
• There has been a clear attempt to derail the Federal Structure of the Constitution
through flawed legislation.
• There has also been an attempt at Executive Overreach through Colourable Legislation.
• The Last straw would be the denial of legal remedies and access to justice by the
undermining of Legal and Constitutional institutions.
• The three laws have been stayed by the Supreme Court on 12th January 2021, but in
complete fairness they must be struck down as completely violative of the basic
essence of a Federal Constitutional Structure and Legal System.
Thank You