Can Constitutionality of the Farm Bills be Challenged ???

The farmers' group challenged in Supreme Court three farm laws passed by the government through Ordinance. The Bills are 

1. Farmer's Produce Trade and Commerce (Promotion and Facilitation) Act, 2020

2. Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and 

3. Essential Commodities (Amendment) Act, 2020.

These laws came into being from September 27 after President Ram Nath Kovind’s assent.

The recourse to passing of bills through Ordinance (power with the centre under Article 123 and power with the states under Article 213) is taken when the Parliament is not in session and if the government feels that it is of utmost importance to have certain bills passed. The bill thus passed should be subsequently passed in the next session of parliament within 6 weeks. Therefore the farm bills brought through Ordinance on 5th June, 2020 were passed by parliament in the Monsoon Session on 20th September, 2020 and on 27th September by the President of India.

The urgency to pass bills through Ordinance can be debatable inspite of the fact that all governments have been taking recourse to Ordinance to pass the bills when the parliament is not in session. Even the BJP government never lagged behind for massive use of Ordinance ever since it came in power in 2014. And since BJP came in power with a massive majority combined with Corona lockdown she got a god sent opportunity to make use of Ordinance to have legal sanction of their political agenda for farm reforms. The government was in a duce hurry to have the Farm Law passed. She even managed with the Vice Chairman of Rajya Sabha that the issue of farm law is not to be taken up with the Select Committee for consideration.

It is better to understand if the constitutionality of the farm bills can be challenged on the basis of content and procedure. 

So far content is concerned the bills do not impinge upon any of the fundamental rights guaranteed under Article 13 of the Constitution. 

Similarly the content of the bills do not impinge upon a basic structure of the Constitution and thereby is in line with the historic judgement given by Supreme Court vide Kesavananda Bharati v. State of Kerala Case 1973 that constitution is allowed to amendments instead of structural change to shake its foundation. Therefore the present farm Bills 2020 are Amendments to and not a rewriting of a constitution.

The contents of the bills do not even challenge our constitutional federal structure. Many are saying that the centre has infringed upon a matter related to state federalism as engrained under State Legislative Powers. The 7th Schedule of our constitution has three lists under Article 246, namely 1. Union List which allows centre to make laws, 

2. State List which allows state to make laws and

3. Concurrent List which allows both the centre and state to make laws. Under a situation of conflict or contradiction over laws made by centre and state Concurrent List of Article 254 ensures preference to the laws made by centre. Hence the Supreme Court adopts the doctrine of federal supremacy for the law, if constitutionally relevant, made by the centre or parliament in Concurrent List. 

It must be noted that all the agriculture related Entries already in State List of Article 246 as regard to production, supply, distribution of goods & services were included in the Entry 33 of Article 254 of Concurrent List in the 3rd Amendment (1954) of constitution initiated by our 1st PM Jawahar Lal Nehru because Nehru was not getting the desired cooperation and results from the states as regards to land and agricultural reforms. Hence to dilute the powers under State List, Entry 33 of the Concurrent List included trade and commerce laws related to agriculture production, supply and distribution. As per amendment the laws on agriculture in the state list are valid only subject to Entry 33 of the Concurrent List. In other words Entry 33 in Concurrent List holds prime consideration over Entry 14 (Agriculture), Entry 26 (Trade & Commerce in state) and Entry 27 (production, supply, distribution of goods & services) in State List. Thus Entry 33 of the Concurrent List closes all scope for contradiction with the State List of Article 246 and gives powers to centre to override the state.

Therefore three farm bills passed through Ordinance by the government conform to Entry 33 of the Concurrent List of the Constitution. Hence, the Supreme Court may not take up the bills for consideration to weigh their constitutional validity. It is also seen that the Supreme Court gives credence to the bills passed in the parliament considering without doubt that the government must have whetted the bill well before giving it a legal shape. 

Many claim that there has been a procedural flaw in passing the bills. 

As regards to passing the bills in Lok Sabha, we all know that the government had the numbers. It was very easy to have the bills passed. In Rajya Sabha out of 242 members the government had 112 and the opposition had nearer to 100 and 105 numbers, minus the absentees and those who had to stay out due to lack of sitting space in view of Corona precautions. The government needed 10 more members to make it 122 to have the bill passed in Rajya Sabha. 

The House had to take recourse to voice vote in Rajya Sabha as all members could not be allowed allotted seats due to Corona distancing in sitting arrangement. The Chairman of the Rajya Sabha could have even requested for a combined voting in a joint sitting of Lok Sabha & Rajya Sabha. In such a situation LS + RS /2 +1, ie 543+242= 785÷2 =392+1=393 members needed to favour the bills. In Lok Sabha NDA had  353/543 members and minus Shiv Sena 18 members and Shiromani Akali Dal 2 members NDA had 333 members. The farm bills would have still been passed as NDA could easily manage at least 400 votes had there been a joint sitting to pass the bills. So there was no procedural flaw also to have the bills passed as per the constitution. We can say the government turned disaster into opportunity.