Context: The three Acts have poor legal validity, may be unconstitutional and weaken federalism.

• The passage of the three Farm Acts by Parliament has led to a constitutional debate. These Acts 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, and the Essential Commodities (Amendment) Act, 2020.

Does the Union government have the authority to legislate on what are rightfully the affairs of States?

Many States have questioned the constitutional validity of the Farm Acts and are reportedly exploring legal options.

The issue

• Agriculture is a State subject in the Constitution, listed as Entry 14 in the State List (List II).
• This apart, Entry 26 in List II refers to “trade and commerce within the State”; Entry 27 refers to “production, supply and distribution of goods”; and Entry 28 refers to “markets and fairs”.
• For these reasons, intra-State marketing in agriculture was always considered a legislative prerogative of States.

Extraordinary step

• Parliament’s passage of the Farm Bills was an extraordinary step, as the central government invoked Entry 33 in the Concurrent List (List III).
• Entry 26 and 27 in List II are listed as “subject to the provisions of Entry 33 of List III”.
• Entry 33 in List III is the following: 33. Trade and commerce in, and the production, supply and distribution of, —

(a) 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;

(b) foodstuffs, including edible oilseeds and oils;

(c) cattle fodder, including oilcakes and other concentrates;

(d) raw cotton, whether ginned or unginned, and cotton seed; and

(e) raw jute.

Amendment and dissent

• Entry 33, in its present form, was inserted in List III through the Constitution (Third Amendment) Act, 1954.
• As per Article 369 in the original version of the Constitution, the responsibility of agricultural trade and commerce within a State was temporarily entrusted to the Union government for a period of five years beginning from 1950.
• The 1954 Amendment attempted to change this into a permanent feature in the Constitution.
• Amendment was required because many States were deficit in food production, and the Centre had to “safeguard the interests of the weaker units in the Union”.

What the judiciary said

• In many of its judgments after 1954, the Supreme Court of India has upheld the legislative powers of States in intra-State agricultural marketing.
• The ruling of the five-judge Constitution Bench in T.C. Limited vs. Agricultural Produce Market Committee (APMC) and Others, 2002. The Tobacco Board Act, 1975 had brought the development of the tobacco industry under the Centre.
• An earlier judgment had held that the State APMC Act will be repugnant to the Central Act, and hence was ultra vires. But the Constitution Bench upheld the validity of the State APMC Act, and ruled that

(a) market fees can be charged from ITC under the State APMC Act;

(b) State laws become repugnant only if the State and Centre enact laws on the same subject matter under an Entry in List III; and

(c) in those cases outside List III, one has to first examine if the subject matter was an exclusive entry under List I or List II, and only after determining this can one decide on the dominant legislation that would prevail.

Conclusion:

• In summary, first, it was unwise on the part of the Centre to use Entry 33 in List III to push the Farm Bills.
• Such adventurism weakens the spirit of federal cooperation that India needs in this hour of crisis.
• Second, agriculture is exclusively a State subject. Everything that is ancillary or subsidiary to an exclusive subject in List II should also fall under the exclusive legislative purview of States.
• Most importantly, Entry 28 in List II — i.e., “markets and fairs” — is not subject to Entry 33 in List III.
• In short, there appears to be a strong case to reasonably argue that the Farm Acts have poor legal validity, if not being outrightly unconstitutional.

https://www.thehindu.com/opinion/lead/farm-acts-unwanted-constitutional-adventurism/article32776232.ece?homepage=true