Three farm laws, enacted by the parliament, have triggered an unprecedented controversy.
A few fundamental questions arise: Does the parliament have the legislative competence to enact laws on agriculture?
What does agriculture mean? What does foodstuff mean? What does farm produce mean? Are they synonymous?
The subject matter of legislative competence of the parliament (or a state) emanates from Article 246 of the constitution. Article 246 envisages three lists: I (Union List), II (State List), and III (Concurrent List) applies to both Union and states. These three lists appear in Schedule 7 of the constitution.
The word “agriculture” finds mention 12 times in the three lists. In List I, it appears in entries 82, 86, 87, and 88; in List II under entries 14, 18, 30, 46, 47 and 48; and under entries 6 and 41 of List III.
It would be observed that under List I in entries 82, 86, 87 and 88 (where the word “agriculture” appear), parliament’s law-making power has been circumscribed by the words “other than” agriculture income (entry 82) or “exclusive of” agricultural land (entry 86), or “other than” agricultural land (entries 87 and 88). This means the Union List does not empower the parliament to enact any law on agriculture.
Under the State List, “agriculture” is mentioned in entry 14. So, states are entirely competent to enact laws on agriculture. Entry 18 mentions, inter-alia, “transfer and alienation of agricultural land”. Entry 30 mentions, inter-alia, “relief of agricultural indebtedness”.
Entries 46, 47 and 48 mention taxes on “agriculture income, duties in respect of succession to “agricultural land” and “estate duty in respect of agricultural land”. Significantly, these very subject matters pertaining to agriculture are specifically prohibited under List I (Union List) as mentioned above.
The prohibition in List I through the words “other than” and “exclusive of”, as mentioned above, is loud and clear. This means on these subjects (on taxes, duties and estate duties on agricultural income and agricultural land) what parliament is prohibited from enacting, states are specifically empowered to enact.
Under the Concurrent List (applicable both to the Union and states), in entry 6, the words mentioned are the transfer of property “other than” agricultural land. In entry 41, the words mentioned are: custody, management and disposal of property (including agricultural land) declared by law to be evacuee property.
Parliament overstepping into states’ ambit
From a bare look at the above entries under three lists, it stands established that the parliament lacks legislative competence under Articles 245 and 246 to enact any law pertaining to “agriculture”, except through the gateway of entry 41 of List III (Concurrent List). This entry, however, relates only to agricultural land that is evacuee property, which is not the case in respect of three farm laws, namely :
- The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020
- The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
- The Essential Commodities Act1955 (As amended by the Essential Commodities (Amendment) Act, 2020
Barring agricultural land as an evacuee property, every law on agriculture remains within the exclusive legislative competence of states through List II entries 14 read with entries 18, 30, 46, 47 and 48 as argued above. Consequently, the three farm laws pertaining to agriculture enacted by parliament lack legislative competence.
The parliament seems to have pressed entry 33 (b) of the Concurrent List into motion, which mentions trade and commerce, and the production, in the supply and distribution of “foodstuffs”, including edible oil seeds and oils. Entry 33 (b) does not use the word “agriculture”. The question is whether parliament is competent to expand the scope or definition of “foodstuffs” into agricultural items in entry 33 (b) through legislation without a constitutional amendment? Surely not, in my view.
The definition of Section 2 (e) of the first farm law mentioned above reads thus: “farmer means an individual engaged in production of farming produce by self or by hired labour or otherwise and includes the Farmer Producer Organisations”.
“Farm produce”, in turn, is defined in Section 2 (h) that includes “foodstuffs, further including edible oilseeds and oils, all kinds of cereals, like wheat, rice, other coarse grains, pulses, vegetable, fruits, nuts, spices, sugarcane, and products of poultry, piggery, goatery, fishery, and diary, intended for human consumption in its natural or processed form, cattle fodder, including oil cakes, and other concentrates, raw cotton, whether ginned or unginned, cotton seeds and raw jutes”.
It is striking to notice the expansion of words under List III (Concurrent List) entry 33 (b) from “foodstuffs, edible oilseeds and oils” to every kind of agricultural produce, through this legislation [Section 2 (h)]!
Thus, “foodstuffs” has literally been equated with agricultural stuff. “Farm produce” has literally been with “foodstuff” and a whole lot of “agricultural stuff”, in natural or processed form.
Could the parliament have enacted such farm laws under List III entry 33 (b), which otherwise only states can enact under State List entry 14? This is not only merely a colourable legislation but lacks legislative competence. Without a constitutional amendment, this could not have been done.
Bishwajit Bhattacharyya is a senior advocate at the Supreme Court of India.