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India's Federal Structure, How Does It Affect Agriculture?
Federalism is one of the key pillars of the legislative division of power in the Indian context. It lies in between unitary government, with a strong center, and confederal government with a loose center.
Photo Credit : Reuters
Agriculture has been on the government agenda since the First Five Year Plan, which focused primarily on farm and farmer development. Since then, we have witnessed the green revolution, round revolution of potatoes, and white revolution of milk, etc. The most recent development in this sector is the three farm bills, which are centered around Minimum Support Price (MSP) mainly. One of the key areas of contention between center and state, relates to the legality of the farm laws. What is the question over the constitutionality of these bills?
Federalism is one of the key pillars of the legislative division of power in the Indian context. It lies in between unitary government, with a strong center, and confederal government with a loose center. K.M.Munshi, a member of the first constitutional assembly of India, called this constitution quasi-federal, while B.R. Ambedkar, the father of the Indian constitution called our system unitary as well as federal. A renowned expert of the Indian constitution Granville Austin calls India cooperative federalism. We have asymmetric federalism in India, unlike the USA, which has served as a sustainable policy-making model all these years.
To understand the issue of farmers' protest better, we need to look at agriculture as a subject under the Indian constitution, as well as rulings on federalism by the Supreme Court. Terms related to agriculture occur at 15 places in the Seventh Schedule of the Indian Constitution (which divides subjects to legislate on between center and state, along with overlapping areas):
•The entries of number 82, 86, 87, and 88 in the Union List, mention taxation and duties on income and assets, while specifically excluding those in respect of agriculture.
•In the State List, eight entries contain terms relating to agriculture, namely, entry 14 which talks about agricultural education and research, including pests, and plant diseases; entry18 which is about rights in or over land, land tenures, rents, transfer agricultural land, agricultural loans, etc.; entry 28 speaks about markets and fairs(which are key for farm produce sale); entry 30 deals with agricultural indebtedness; and entry 45 with land revenue, land records, etc.; while entry 46 with taxes on agricultural income; entry 47 with a succession of agricultural land (which is key a key aspect of land reforms); lastly entry 48 which is regarding estate duty in agricultural land.
•In the Concurrent List, entry 6 mentions the transfer of property other than agricultural land; entry 7 is about various contracts not relating to agricultural land; and entry 41 deals with evacuee property, including agricultural land.
One may note that the State List puts matters mentioned in it outside Union Parliament's jurisdiction and gives state legislatures exclusive power on the mentioned subjects (notwithstanding very special situations). In the Concurrent list, center, and state both can make laws, with the center taking precedence. Given the wide distribution of issues of a single subject, there is a lack of 100% clarity regarding farm laws.
Some experts are of the view, that Centre has brought farm bills by using Entry 33(b) in the Concurrent List, which concerns trade and commerce in agriculture, as well as production, supply, and distribution of foodstuffs. While one may argue the government is technically right, it is also necessary to note that India is a federal state where the opinion of all stake-holders matters. The Punjab Chief Minister, Amrinder Singh condemned this bill as an attack on federalism soon after it was passed. It invited further opposition when the Chattisgarh state assembly passed its own agriculture bill to counter the center. By declaring the entire state as a mandi, the Chhattisgarh government has removed the very basis of the three farm bills. There is thus a rising center vs state debate, and cooperative federalism is turning into competitive federalism with political overtones. Usually, when such a difference of opinion emerges, it is talked through with the states and stakeholders.
If this issue is taken to court, then we have a plethora of judgments already to refer to. Taking heed of such conflicts, the Supreme Court of India in the case of "State of Rajasthan vs G Chawla (1959)", has noted that the courts have to use the path of "pith and substance" to determine the character of legislation that overlaps between entries. This indicates that the constitutionality of an act is upheld if it is mostly covered under one list and touching upon the other list is only incidental.
For interpreting the list, we have a Supreme Court case by the name of State of Bihar v Kameshwar Singh (1952). The court spoke about the doctrine of colorable legislation, which means you cannot do indirectly what you cannot do directly. This doctrine refers to the question of competency of the legislature while enacting a provision of law. This doctrine has been used as a tool to determine the legislative competence of laws enacted by various state legislatures. One also has the option of viewing the farm laws through the lens of this judgment.
Further, as per the Union of India vs H.S.Dhillon (1972) case, the constitutionality of parliamentary laws can be challenged only on two grounds, that is, the subject is in the State List, or that it violates fundamental rights. Where do the 3 bills lie in the spectrum of these judgments is yet to be seen. The court and government are yet to issue a clarification.
The tussle between center and state began in 1967 and has since amplified under the era of the coalition government. However, one expects a solution based on center-state cooperation, which is how we have sustained a diverse country like India as one.