The recent passage of three farm bills by the Punjab legislature, with the purpose of “negating” the recently enacted central laws on the subject, has given rise to interesting constitutional questions on the distribution of and the pecking order of legislative powers between the Union and states.
This constitutional tug of war between the Union and the states in the case of the farm bills is unsurprising for many reasons.
For starters, the three central laws were enacted in a manner in which the majorities that the bills enjoyed in the Rajya Sabha were not immediately apparent.
The Rajya Sabha, the Council of the States, is in theory the part of the legislature that carries and represents the wisdom, the reason, and the interests of the states ie the regional units, to the legislative process.
And secondly, the central government’s claim that the three central laws did not deal with the more specific Entry 14 titled “Agriculture” in the State List and that they only dealt with the generally worded Entry 33 of the Concurrent List that has a specific legislative entry relating to production, supply and of trade in essential goods appears to be a glibly attempted constitutional stratagem.
Centre’s Greater Say in Law-Making
In this backdrop, the Punjab farm bills are a creative and competitive attempt by the state to employ constitutional devices at its disposal to defeat the provisions of the central acts.
The judicial attitudes have progressively turned in favour of greater respect for the states’ powers when counter-balanced with other considerations – for instance, states’ taxing powers versus the guarantee of free trade throughout India; or the Centre’s powers to dismiss state governments under Article 356.
However, it is fair to say that the pecking order that the Constitution prescribes and the weight of the judicial precedent are both loaded in favour of the central acts when it comes to clash of legislative powers between the Union and the states.
The Three Lists
Even as there are lists demarcated under the Seventh Schedule of the Constitution as Union List, State List and the Concurrent List, the provisions of Article 246, 249, 252, 253, 254, and 255 clearly give a certain priority to the Centre’s powers.
There is no provision in the Constitution that enables the states to legislate on the fields that the Union may exclusively legislate on. On the other hand, the Constitution contemplates several occasions wherein the Centre may legislate even in respect of fields in the State List:
- When the Council of the States with a special majority resolves that it is in the public interest for the Centre to legislate on any State List subject (Article 249),
- When two or more states pass resolutions similarly (Article 252),
- When making a law pursuant to any international treaty or convention (Article 253).
Moreover, Article 246, which specifies the spheres of legislation in terms of the Seventh Schedule Lists, makes it clear that the Centre’s legislative powers have no restriction in its sphere – in contrast to the state’s legislative powers (even in its own exclusive sphere of State List) are subject to the Centre’s lawmaking power in its spheres.
Hypothetically, if there is an irreconcilable conflict between a central law made in respect of a central list entry and a state law made in respect of an entry in the State List, it is the central law that will receive primacy.
Moreover, in respect of a Concurrent List item where the state has legislative competence over, if a state law comes in conflict with (in other words, “is in repugnant to”) a central law, it is the central law that prevails – unless the President (ie the central government) has given an assent to the state law (Article 254).
Questions Remain
In the case of a clash between Punjab laws and the central laws, the questions, in addition to the question of the Centre’s legislative competence to enact the farm laws (which is already before the Supreme Court), that arise are as follows:
- First, whether there are irreconcilable differences between the central and the state farm bills?
- Second, whether the assent of the President (under Article 200 read with Article 254) or the refusal of assent to the Punjab farm acts are proper and legal.
The first question is relevant because once there are two legislative enactments, both of them enjoy a presumption of constitutionality. A state law can be judicially struck down only when it is established that there are irreconcilable conflicts between the two laws.
Although the widely held opinion appears to be that there are inconsistencies between the two sets of laws – based on attendant circumstances, including the Punjab CM’s own utterances, it is still possible for a constitutional court to hold that there are indeed no inconsistencies, ie it is possible for all persons to be in compliance of both the laws.
For example, the minimum support price (MSP) guarantees in the Punjab law are arguably perfectly consonant with the central laws given that it is the admitted position of the Centre on the floor of the Parliament that the acts do not intend to weaken, nor derogate from the existing MSP regime.
It can, therefore, be argued that the guarantees and punishment for violation of MSP only strengthens what already exists and that it cannot be said to be inconsistent with the central laws.
The second question is perhaps more relevant as of today when it appears that the Punjab farm bills will be reserved for President’s assent under Article 200 (by the Governor for any reason that he deems fit) or under Article 254 (to cure repugnancy with the central laws).
Punjab Flexing Legislative Muscle?
Irrespective of whether the President assents or withholds assent, the story is certain not to end there. The President’s actions such as assent or withholding of assent are judicially reviewable (Kaiser-i-hind vs National Textile Corporation, five-judge bench decision, 2002).
A constitutional court can call for the records of the government to determine if the assent (or by extension, a refusal to assent) by the President is based on consideration of relevant material indicating fields to which the state legislations relate and the extent and the need of repugnancy as against the central laws.
The Constitution Bench emphasised that the decision-making in respect of assenting under Article 254 is an exercise of “consideration.” The court will hear arguments on the question of whether or not any decision made under Article 254 as to the assent is a considered and a reasoned one.
The vertical separation of powers between the Union and the states is an important constitutional safeguard against concentration of power. The feature of federalism has been held to be a basic feature of the Constitution (SR Bommai vs Union of India, 9J, 1994).
Competitive assertion of legislative powers is not only desirable but also a reasonable structural expectation. In recent times, there has been a move towards what is called “co-operative federalism,” with GST being presented as a shining example – measure that most famously required an amendment to Article 246, the bedrock provision that demarcates legislative powers and one which had stood unamended for nearly 70 years.
The farm bills battle may perhaps signal a return to the original constitutional vision of competitive federalism.
(Prasanna S is an Advocate, Supreme Court of India, founding trustee, Article 21 Trust. Prasanna S tweets @prasanna_s. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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