The three Ordinances on agriculture brought in by the Centre have encroached upon State subjects
India is a democracy with a federal structure. There are elaborate provisions in the Constitution for the Centre and States with regard to their respective financial, administrative and legislative powers. The legislative powers are distributed through Schedule VII of the Constitution, which provides three lists. While List I contains matters on which the Union Government can exclusively legislate, List II enumerates matters on which State Governments can legislate and List III, which is called the Concurrent List, contains matters on which both, the Union and State Governments may legislate.
Agriculture, with all its associated ancillary and subsidiary enterprises, including education and research, livestock, fisheries, irrigation and so on is a State subject. Markets and fairs are also a State subject as per Entry 28 of the State list.
In its characteristic “shock and awe” style, the Centre has promulgated three Ordinances viz. The Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Ordinance, The Farmer’s (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance and The Essential Commodities (Amendment) Ordinance.
Prima facie the first two ordinances do not seem to come under the domain of the Union Government. It is Entry number 33 of the Concurrent List which is presumably put to use by the Union Government for promulgating them. Entry 33 is being reproduced below for better understanding of the issue: “Trade and commerce in, and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; foodstuffs, including edible oil seeds and oils; cattle fodder, including oilcakes and other concentrates; raw cotton whether ginned or unginned, and cotton seeds; and raw jute.”
The sub-entries on foodstuff right up till raw jute were introduced by way of a third amendment to the Constitution in 1955. There is a history and background to the third amendment by which the scope of Entry 33 of List III was enlarged. Trade and commerce within the State and production, supply and distribution of goods were the matters enumerated in the provincial list as per the Government of India Act, 1935. Even now these matters are in the State list under Entry 26 and 27. Therefore, it is needless to say that they are essentially State subjects.
However, due to the World War-II, emergency was declared and the Central legislature acquired the power to legislate on these matters. When the emergency was lifted, the power to legislate on these matters was sought to be retained by the Dominion Government due to the prevailing circumstances and scarcity of essential items. The Dominion Government also enacted The Essential Supplies (Temporary) Powers Act, 1946 (hereinafter referred to as Act of 1946) to handle the situation. The Constituent Assembly, with a view to carry on with the arrangement, inserted Article 369 as a temporary provision in the Constitution for a period of five years from the date of commencement of the Constitution. Article 369 and the Act of 1946 were to expire on January 26, 1955.
However, the situation of food articles and other essential supplies in the country was still precarious and the menace of hoarding and black marketing was still there. So, with a view to continue the arrangement allowing the Centre to legislate on trade, commerce and production, supply and distribution of essential commodities, four sub-entries were introduced in Entry 33 by way of the third amendment to the Constitution.
Alongside, The Essential Commodities Act, 1955 was also enacted. Therefore, it was the space ceded by Article 369 of the Constitution and Act of 1946, which in fact came to be occupied by the amended Entry 33 in List III and The Essential Commodities Act, 1955 (ECA). The amended Entry 33 and ECA principally equipped the Union Government to tackle the scarcity of essential articles, hoarding, black-marketing, irrational price rise and such situations in the country and were never meant to be used generally. With the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, the Union Government has taken control of the entire intra-State sale and purchase of all the agricultural produce and has actually trampled upon the matters which are State subjects.
So far as the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance is concerned, which basically provides legal structure for contract farming, the same in effect directly deals with the production in the agriculture sector which, in every respect, is a State subject. The interpretation, which the Centre has given to sub-entries of Entry 33 of List III, is novel. The Union has tried to use Entry 33 as a standalone provision and it conveniently ignored the context, object and background of the sub-entries for the reasons which are other than unintended. The Ordinance route makes the intentions of the Centre only more suspect.
An observation made by the Supreme Court in the case of SR Bommai Vs Centre is a compelling reminder for respecting the federal structure of the Constitution and which reads as thus: “The fact that under the scheme of our Constitution, great power is conferred upon the Centre vis-Ã -vis the States does not mean that States are mere appendages of the Centre. With the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.”
Consequently, the first two of the three Ordinances mentioned above have certainly encroached upon the State subjects and it is a colourable exercise of jurisdiction by the Union Government.
It is not a case where a Central legislation incidentally trenched upon a subject in the State list but a case where the Centre has blatantly usurped subjects which are essentially State matters. The action by the Union Government is surely not in the spirit of federalism, which has been held to be one of the basic features of the Constitution by the Supreme Court.
(The writer is a practising advocate in Punjab and Haryana High Court)