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NATIONAL INSTITUTE OF SECURITIES MARKET, MUMBAI
MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

SUBJECT

COMPARATIVE PUBLIC LAW

RESEARCH PAPER

Title
Constitutional Validity of Farm Act 2020
“ A Study vis-a-vis Federalism ”

Submitted to: Submitted by :

Dr Amitabh Gawale (Supervisor) Shahnawaz Ali (LLM)

ABSTRACT

Federalism is one of the pillars of the basic structure of the Constitution of India. The scheme of the
Indian Constitution provides a Federal Structure of Indian Polity in which the Sovereign power of
the Country has been divided between Union and the State, including the legislative powers.
Recently, the Union Parliament has passed three agriculture related Acts which is commonly known
as Farm Acts,2020 which gave rise to a big controversy among all the stake holders particularly the
Union, the States and the Farmers because of the various socio-economic, political ,legal and con-
stitutional issues which involved within these three controversial Acts. Validity of any law, whether
passed by Union or State, is judged with reference to their respective jurisdictions as defined in the
Constitution under the Chapter 11 & 7th Schedule. Agriculture and its related matter has been expli-
citly falls under the State List due to which all major legislation on agriculture till date has been en-
acted by the respective State legislatures. Many of the rulings of the Apex Court of India also sub-
scribe to the view that agriculture is purely a State subjects. This paper critically discusses the con-
stitutional validity of the controversial Farm Acts with the help of doctrinal method using primary
and secondary sources. The controversial legal issue is whether Union Parliament is constitution-
ally competent to enact laws upon any matter falling within the exclusive jurisdiction of the State
legislature under State List. The paper argues that such unwarranted acts of the Center government
is constitutionally and legally not tenable and it would leads to the breakdown of the Federal struc-
ture which shall ultimately affects the basic structure of Indian Constitution and Constitutionalism.

Keywords: Federalism, Farm Acts, Seventh Schedule, Basic Structure, Entry 33,Article 249.
1.INTRODUCTION

The scheme of the Indian Constitution provides a Federal Structure of Indian Polity in which the
Sovereign power of the Country has been divided between Union and the State, including the legis-
lative powers. Federalism is one of the pillars of the basic structure of the Constitution of India.(SR
Bommai Case 1) The basic principle of the Indian Federation is that the legislative and executive au-
thority is divided and demarcated between the centre and the states not by any law to be made by
the centre, but by the constitution itself. Division of powers is the soul of Indian Federalism, which
is known as one of the basic structure of Indian Constitution and any Law being enacted either by
the Centre or State in contravention or violation of the basic structure of the Constitution is Ab-ini-
tio null & void. Validity of any law, whether passed by Union or State, is judged with reference to
their respective jurisdictions as defined in the Constitution under the Chapter 11 & 7th Schedule.
The states are in no way dependent upon the centre for their legislature or executive authority. The
states and the centre are coequal in this matter (B.R. Ambedkar ,1954) 2
Recently, the Union Parliament has passed the contentious and controversial agriculture laws which
is commonly known as Farm Acts,2020 which gave rise to a big controversy among all the stake
holders particularly the Union, the States and the Farmers because of the various socio-economic,
political, legal and constitutional issues which involved with these controversial Acts. The Contro-
versial Farm Acts 2020 passed by the Union Parliament is regarding agriculture which falls within
the ambit and exclusive jurisdiction of State Legislature as Article 246 & 7th Schedule clearly
provides these under State List.3Since agriculture and its related matter has been explicitly falls un-
der the State List due to which all major legislation on agriculture till date has been enacted by the
respective State legislatures. The Supreme Court of India in many of its rulings since 1954, has re-
cognised the legislative powers of States in agricultural matter. Most important was the ruling of the
five-judge Constitutional Bench in Tika Ram Case4 and I.T.C. Limited Cases. 5
Since the enactment of controversial Farms Acts by Union Parliament is an unwarranted encroach-
ment into the legislative sphere of State list and consequently an unethical move towards the
erosion of the basic structure of our Constitution i,e Federalism. Hence, it argues that three Farms
Acts passed by the Union Parliament is unethical and unconstitutional.

1 AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644
https://indiankanoon.org/doc/139734870/
2 Constitutional Assembly Debates, Vol,5, P.37,1949.
3 P M Bakshi,The Constitution of India, Universal Law Publishing,14th Ed.
4 Ch.Tika Ramji & Others, Etc vs The State Of Uttar Pradesh & Others (1956 AIR 676, 1956 SCR)
5 I.T.C Ltd. V. Agricultural Produce Market Committee & Ors [2002]https://indiankanoon.org/doc/299584/
The unwarranted Legislative encroachment by the Union into the sphere of the State is a biggest
challenge and threat for the sustainability of the Indian Federal system and Basic Structure too.
In the Union of India v H.S.Dhillon (1972)6, the Hon’ble Supreme Court observed that constitution-
ality of parliamentary laws can be challenged only on two grounds viz, that the subject is in the
State List, or that it violates fundamental rights. In the present case Union’s Farm Acts, various
question of law which strikes at the constitutional validity of the Farm Acts could be invoked once
the issue come before the Hon’ble Court such as follows :-
Is invoking parliamentary powers on agriculture consistent with the scheme of federalism and spirit
of the Constitution?
Does Parliament have the power to enact laws on agricultural markets and lands?
Should the Constitution have been amended before enacting these agriculture laws?
Is Union Farm Act not weakening the constitutional fabric of Indian Federalism ?
The above statement of problem or questions of law has evoked various questions in the re-
searcher’s mind pertaining to the legal validity of the Acts, there by considering it necessary this re-
search paper is undertaken to critically analysis into the Constitutional validity of the controversial
and contentious Union Farm Acts 2020 in the light of the Principle of Federalism & Basic Structure.
The scope and limitation of the present study is confine on the study of the constitutional validity of
the Acts vis-a-vis Federal Principles as it has thrown out constitutional challenges to the very exist-
ence of the Indian Federal Structure and most importantly the division of power.
The present study is justified because there is no academic literature available on the critical evalu-
ation of the Constitutional validity of the Controversial Farm Act 2020 .The researcher would at-
tempt to fill-up the gap by critically analysing various legal aspects of the Farm Acts which ulti -
mately goes to the roots of its Constitutional validity vis-a-vis Federalsim. The limitations of the
Study is that it has neither critically evaluates each Acts separately nor the socio-economic implica-
tions of the Controversial Acts ,rather it focused only on the Constitutional validity of the Acts in
the light of Federalism.

6Union Of India vs H. S. Dhillon on 21 October, 1971Equivalent citations: 1972 AIR 1061, 1972 SCR (2) 3
https://indiankanoon.org/doc/1235907/
2. ABOUT THE CONTROVERSIAL ACTS

The three controversial Acts which aim to change the way agricultural produce is marketed, sold
and stored across the country were initially issued in the form of ordinances in June. They were then
passed by voice-vote in both the Lok Sabha and the Rajya Sabha during the delayed monsoon ses-
sion this month, despite vociferous Opposition protest. (Priscilla Jebaraj,2020) 7
The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 8, provides a
facilitation platform to farmers to sell their agriculture produce outside the notified Agricultural
Produce Market Committee(commonly knows as State Mandis) without paying any agriculture
tax(which is a State subject) thereby promoting their freedom of choice relating to sale and pur-
chase of agriculture produce.
The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services
Act, 20209,provides a scheme of contract farming agreement wherein farmer enter into agreement
with the big corporate and agri-bussiness firms regarding the future sale of their agriculture produce
not at a minimum selling price(MSP) , but at a mutually agreed price between the parties.
The Essential Commodities (Amendment) Act, 2020,10 was enacted at the time of Independence to
meet the food crisis faced by India just after Independence. The aim of the Act was to meet the ex-
traordinary and emergency situation with regard to essential commodities. At the time of enactment
it was a temporary enactment ,but with passage of time government kept it retaining by introducing
time to time amendments.

7 https://www.thehindu.com/news/cities/Delhi/farmers-vow-to-come-to-delhi-for-protest-despite-police-refusing-per-
mission/article33076199.ece
8 THE FARMERS’ PRODUCE TRADE AND COMMERCE (PROMOTION AND FACILITATION) ACT, 2020
NO. 21 OF 2020 ,An Act to provide for the creation of an ecosystem where the farmers and traders enjoy the free-
dom of choice relating to sale and purchase of farmers’ produce which facilitates remunerative prices through com-
petitive alternative trading channels; to promote efficient, transparent and barrier-free inter-State and intra-State
trade and commerce of farmers’ produce outside the physical premises of markets or deemed markets notified under
various State agricultural produce market legislations; to provide a facilitative framework for electronic trading and
for matters connected therewith or incidental thereto http://egazette.nic.in/WriteReadData/2020/222039.pdf
9 THE FARMERS (EMPOWERMENT AND PROTECTION) AGREEMENT ON PRICE ASSURANCE AND
FARM SERVICES ACT, 2020 NO. 20 OF 2020 [24th September, 2020.] An Act to provide for a national frame-
work on farming agreements that protects and empowers farmers to engage with agri-business firms, processors,
wholesalers, exporters or large retailers for farm services and sale of future farming produce at a mutually agreed
remunerative price framework in a fair and transparent manner and for matters connected therewith or incidental
thereto. http://egazette.nic.in/WriteReadData/2020/222040.pdf

10 THE ESSENTIAL COMMODITIES (AMENDMENT) ORDINANCE, 2020 NO. 8 OF 2020An Act further to
amend the Essential Commodities Act, 1955. BE it enacted by Parliament in the Seventy-first Year of the Republic
of India as follows:— 1. (1) This Act may be called the Essential Commodities (Amendment) Act, 2020. (2) It shall
be deemed to have come into force on the 5th day of June, 2020. 2. In section 3 of the Essential Commodities Act,
1955, after sub-section (1), the following sub-section shall be inserted, namely:— ‘(1A) Notwithstanding anything
contained in sub-section (1),— (a) the supply of such foodstuffs, including cereals, pulses, potato, onions, edible
oilseeds and oils, as the Central Government may, by notification in the Official Gazette, specify, may be regulated
only under extraordinary circumstances which may include war, famine, extraordinary price rise and natural calam-
ity of grave nature; http://egazette.nic.in/WriteReadData/2020/222039.pdf
3. FEDERALISM AND POWER SHARING
The Indian Constitution introduces a federal system as the basic structure of government of the
country 11in which the power and authority of the government has been shares between the Centre
and the States governments. Both the union and the states derive their authority from the constitu-
tion which divided all powers - legislative, executive and financial as between them. 12 According to
DD Basu, the states are not delegates of the union, but they are autonomous within their own
spheres as allotted by the constitution. “The union and the states are also equally subjected to the
limitations imposed by the constitution”13 The scheme of distribution of legislative powers between
the Union and the States it is quite evident that the framers have given more powers to the Union
Parliament as against the States. Yet, the states are not made subordinate units of the centre. In nor-
mal times, they have been granted enough autonomy to act as independent center of authority.
(Poonam Sonwani, 2016)14Indian federalism involves division of power between the Centre and
States. In India there are three lists-Union, State and Concurrent- the Centre shall have an overrid-
ing authority in matters of items contained in concurrent list. The residuary powers are given to the
Centre. The Union list includes defence, railways, airways, foreign policy, post and telegraph, cur-
rency, war and peace etc. According to the scheme of Indian Federlaism,the Union Parliament does-
not have power to make laws on any of the matter listed in State list under Seventh Schedule.
However, there are certain exceptions to this general law. There are certain cases wherein the Parlia-
ment can legislate for the States which have been enumerated under Article 249 to 253 of the Con-
stitution of India. (i)If Rajya Sabha passes a resolution (Article 249)(ii)If Proclamation of Emer-
gency is in force (Article 250) and (iii) If two or more States pass a resolution (Article 252) and For
enforcing international agreements (Article 253)

11 PART XI RELATIONS BETWEEN THE UNION AND THE STATES CHAPTER I.—LEGISLATIVE RELA-
TIONS Distribution of Legislative Powers 1. Extent of laws made by Parliament and by the Legislatures of States.
—(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the ter-
ritory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made
by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation.
http://legislative.gov.in/sites/default/files/COI-updated.pdf
12 246. Subject-matter of laws made by Parliament and by the Legislatures of States.—(1) Notwithstanding anything
in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated
in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). (2) Notwithstanding anything
in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1*** also, have power to make
laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred
to as the “Concurrent List”). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to
make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh
Schedule (in this Constitution referred to as the “State List”). (4) Parliament has power to make laws with respect to
any matter for any part of the territory of India not included 2 [in a State] notwithstanding that such matter is a mat-
ter enumerated in the State List. http://legislative.gov.in/sites/default/files/COI-updated.pdf
13 Basu, D.D., Introduction to the Constitution of India, Wadhwa Law Publishers, New Delhi, 2005, P.317.
14 Distribution of Legislative Powers under the Indian Constitution https://www.researchgate.net/publication
299405707
3.1 State exclusive jurisdiction over agriculture
According to the 7th Schedule of the Constitution of India, the State has been given an exclusive
jurisdiction to legislate on the subject of agriculture and its ancillary items 15Every power—Execut-
ive, Legislative and Judicial, whether it belongs to the federation or the component is controlled by
the distribution of power as per the scheme of Constitution. 16In the Constitution, ‘Agriculture’ has
been placed as Entry 14 in the State List along with several ancillary matters, while some agricul-
ture-related items have been included in the Union List and the Concurrent List.
Agriculture is a multi-faceted activity and therefore, the framers of the Constitution distributed the
various subjects of legislation in respect of agriculture and related matters between the Union and
the States on a threefold pattern. Agriculture and most mattes ancillary to or directly connected with
it, were placed within the exclusive legislative and executive competence of the States. Accordingly,
agricultural education and research, protection against pests and prevention of plant diseases; pre-
servation, protection and improvement of stock and prevention of animal diseases; veterinary train-
ing and practice; pounds and the prevention of cattle trespass; land, rights in or over land, land ten-
ures including the relation of landlord and tenant; collection of rents; transfer and alienation of agri-
cultural land; land improvement agricultural loans; colonization; fisheries; markets and fairs; money
-lending and money-lenders; relief of agricultural indebtedness; cooperative societies; land revenue;
maintenance of land records taxes on agricultural income; duties in respect of succession to agricul-
tural land and estate duty in respect of agricultural land, have all been made exclusive responsibility
of the States (vide Entries 14, 15, 16, 18, 21, 28, 30, 32, 45, 46, 47 and 48 of the State List).

15 Entry List II—State List No. 14. Agriculture, including agricultural education and research, protection against pests
and prevention of Plant diseases. 15. Preservation, protection and improvement of stock and prevention of animal
diseases; veterinary training and practice. 16. Pounds and the prevention of cattle trespass. 17. Water, that is to say,
water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the pro-
visions of entry 56 of List I. 18. Land, that is to say, rights in or over land, land tenures including the relation of
landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and
agricultural loans; colonization. 21. Fisheries. 26. Trade and commerce within the State subject to the provisions of
entry 33 of List III. 27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III.
28. Markets and fairs. 30. Money-lending and money-lenders; relief of agricultural indebtedness. 32. Incorporation,
regulation and winding up of corporations other than those specified in List I, and universities; unincorporated trad-
ing literary, scientific, religious and other societies and associations; co-operative societies. 45. Land revenue, in-
cluding the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and
records of rights, and alienation of revenues. 46. Taxes on agricultural income. 47. Duties in respect of succession
to agricultural land. 48. Estate Duty in respect of agricultural land. 50. Taxes on mineral rights subject to any limita-
tions imposed by Parliament by law relating to mineral development. 52. Taxes on the entry of goods into a local
area for consumption, use or sale therein. 53. Taxes on the consumption or sale of electricity. 54. Taxes on the sale
or purchase of goods other than newspapers, subject to the provisions of Entry 92A of List I. 58. Taxes on animals
and boats. 59. Tolls. 60. Taxes on professions, trades, callings and employments. 63. Rates of stamp duty in respect
of documents other than those specified in the provisions of List I with regard to rates of stamp duty
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERXIV.pdf
16 PM Bakshi,The Constitution of India,14 ed
3.2 Union competency to legislate in State list
The Union list under seventh schedule does not provide any power upon the Union Parliament to le-
gislate upon agriculture items.17 The Principle of Federalism of Indian Constitution 18 clearly di-
vided and demarcated the Sovereign power including the legislative powers between the Union and
States even though in special circumstances and for national interest the predominance of Parlia-
ment in the sphere of law making was established by several Articles of the Constitution of India.
Accordingly Article 249 19provided that, if Rajya Sabha declared by a resolution not less than two-
thirds of the members present and voting that it was necessary or expedient, in the national interest
that Parliament should make laws with respect to any matter in the State List specified , it becomes
lawful for Parliament to make laws with respect with that matter during the period the resolution
remained in force. Such a resolution remained in force for such period, not exceeding one year, as
might be specified therein. The Rajya Sabha, however, could extend the period of such a resolution
for a further period of one year from the date on which it would otherwise have ceased to operate.
A law made by Parliament, which Parliament would not but for the passing of such resolution by
Rajya Sabha have been competent to make, ceased to have any effect on the expiration of a period
of six months after the resolution had ceased to be in force, except in respect of things done or omit-
ted to be done before the expiration of that period.

17 Entry List I—Union List No. 28. Port quarantine, including hospitals connected therewith; seamen's and marine
hospitals. 42. Inter-State trade and commerce. 43. Incorporation, regulation and winding up of trading corporations,
including banking, insurance and fnancial corporations but not including co-operative societies. 44. Incorporation,
regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not
including universities. 45. Banking. 47. Insurance. 51. Establishment of standards of quality for goods to be expor-
ted out of India or transported from one State to another. 52. Industries, the control of which by the Union is de-
clared by Parliament by law to be expedient in the public interest. 56. Regulation and development of inter-State
rivers and river valleys to the extent to which such regulation and development under the control of the Union is de-
clared by Parliament by law to be expedient in the public interest. 57. Fishing and fisheries beyond territorial wa-
ters. 59. Cultivation, manufacture, and sale for export, of opium. 63. The institutions known at the commencement
of this Constitution as the Banaras Hindu University, the Aligarh Muslim University and the Delhi University; the
University established in pursuance of article 371E; any other institution declared by Parliament by law to be an in-
stitution of national importance. 64. Institutions for scientific or technical education financed by the Government of
India wholly or in part and declared by Parliament by law to be institutions of national importance. 65. Union agen-
cies and institutions for— (a) professional, vocational or technical training, including the training of police officers;
or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or de-
tection of crime. 66. Co-ordination and determination of standards in institutions for higher education or research
and scientific and technical institutions. 69. Census. 81. Inter State migration; inter State quarantine. 82. Taxes on
income than agricultural income. 97. Any other matter not enumerated in List II or List III including any tax not
mentioned in either of those lists.
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERXIV.pdf
18 246. Subject-matter of laws made by Parliament and by the Legislatures of States.—(1) Notwithstanding anything
in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated
in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
19 249. Power of Parliament to legislate with respect to a matter in the State List in the national interest.—(1) Notwith-
standing anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution
supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the na-
tional interest that Parliament should make laws with respect to 5 [goods and services tax provided under article
246A or] any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to
make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains
in force.
3.3 Critical analysis of Union power :
A critical & analytical study would reveal some important points. Firstly, the resolution required is
of the Council of States alone and not of Parliament which means that a proposal by one of the
Houses enables the Parliament to encroach upon the jurisdiction of the state legislatures. Secondly,
the resolution must be passed by a Majority of two-thirds not of the total number of members of the
Council but only of the members present and voting. Thirdly, the law remains in force so long as the
resolution remains in force, under clause (2) for a period not exceeding one year. Fourthly, if the
Council of States passes a resolution approving the continuance of the previous resolution, it contin-
ues to be in force for one year from the date of the approval by such resolution. But be it noted that
such resolution for approval must also be passed by the same majority of two-thirds. In the next
place clause (3) of Article 249 expressly lays, down the effects of expiry of the temporary laws
made by Parliament under this Article. Such laws, will cease to have effect on the expiration of six
months after the resolution ceases to operate So, after that date, such Union laws shall have no ef-
fect at all, but actions taken as regards rights and liabilities during the operation of such laws shall
remain even after the expiration.
The State Reorganisation Commission observed "The Special provisions, however, are primarily
remedial in character and are meant to prevent a break down in the states and to safeguard the
powers of the Union within its own sphere.”
Articles 249 to 253 along with the emergency provisions which constitute an extraordinary chapter
in the arena of Indian federalism. These provisions are remedial in character and are usually applied
in case of any threat to the very foundation of the federation.
Unfortunately the Center has misuse Article 249 to bring an extra-ordinary law(such as Farm Acts)
in an ordinary circumstances meaning thereby the law which is meant to protect the Indian Federal
Structure has been used to cause threat to the very foundation of the Federalism by unconstitution-
ally legislating in the exclusive jurisdiction of the State List.
Furthermore, the Article 249 nature is of temporary nature meaning thereby it is use in case of
emergency circumstances or exigencies which is evident from the fact that the laws made under
this article remain enforceable only for a limited period of time.
Thus, Centre has no power to legislate in State list matter except in case of emergency or in na -
tional interest when it is responsible for ensuring availability of foodgrains and other agricultural
products and also provisions of critical inputs like fertilizers, water, finance, etc. for their produc-
tion. This role involves, among others, operation of Entry 33 of List III and Entry 52 of List I
By virtue of Entry 33 of List III, Parliament has enacted the Essential Commodities Act, 1955.
The Act gives powers to the Union Government to control production, supply, distribution, trade
and commerce in essential commodities. The definition 'essential commodity' in Section 2 of the
Act includes, inter alia, Sugarcane, Foodstuffs, Edible Oil-Seeds and Oil, Raw Cotton, and Raw
Jute. Agro-Industries, e.g., those concerning manufacture of Sugar, Fertilizers, Insecticides, Fungi-
cides, Weedicides, Vegetable Oils, Agricultural Machinery and Implements, Tractors or Processed
Foodstuffs, etc., are covered by the First Schedule to the Industries (Development and Regulation)
Act, 1951 enacted under Entry 52, List I.

3.4 Center government misusing Concurrent list

The matters of Concurrent jurisdiction of the Union and the States relating to agriculture are 20
‘Prevention of the extension from one State to another of infectious or contagious diseases or pests
of affecting men, animals or plants’ (Entry 29); Trade and commerce in, and the production, supply
and distribution of products of any industry (including one having a nexus with agriculture) con-
trolled by the Union by virtue of a law made by Parliament under Entry 52, List I, or of food-stuffs,
cattle fodder, raw cotton and raw jute (Entry 33); and ‘Price control’ including that of agricultural
products and agricultural inputs (Entry 34). Apart from the above, ‘Economic and social planning’
in Entry 20 of the Concurrent List is comprehensive enough to include planning and development
of agriculture and related activities. The Centre has used Entry 33 of Concurrent List as a tool to le-
gislate controversial Farm Acts despite the fact that the issue of agriculture is a State subject listed
as Entry 14 in the State List.
Entry 3321 in List III deals with trade and commerce in, and the production, supply and distribution
of the products of any industry where the control of such industry by the Union is declared by Par-
liament by law to be expedient in the public interest. Entry 33 deals only with trade and commerce

20 List III—Concurrent List 9. Bankruptcy and insolvency. 17. Prevention of cruelty to animals. 17A. Forests. 17B.
Protection of Wild animals and other birds. 18. Adulteration of foodstuffs and other goods. 20. Economic and social
planning. 23. Social security and social insurance; employment and unemployment. 25. Education, including tech-
nical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I;
vocational and technical training of labour. 29. Prevention of the extension from one State to another of infectious
or contagious diseases or pests affecting men, animals or plants. 30. Vital statistics including registration of births
and deaths. 33. Trade and commerce in, and the production, supply and distribution of,— (a) the products of any in-
dustry where the control of such industry by the union is declared by Parliament by law to be expedient in the pub-
lic 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. 34. Price control. 38. Electricity. 45. Inquiries and statistics for the purposes of any of the
matters specified in List II or List III.
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERXIV.pdf
21 Entry [33. Trade and commerce in, and the production, supply and distribution of,— (a) the products of any in-
dustry where the control of such industry by the Union is declared by Parliament by law to be expedient in the pub-
lic interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils;
1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 57 (w.e.f. 3-1-1977). 2. Subs. by ibid., for entry
25. 3. Subs. by the Constitution (Third Amendment) Act, 1954, s. 2 (w.e.f. 22-2-1955). 220 (c) cattle fodder, includ-
ing oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.]
of foodstuffs and other items and permits no such inference that the Central government can legis-
late on the subject of market fee, cess or levy, much less prohibit the state from levying the same.
The interpretation which the present Union government has given to Entry 33 is novel. The Union
government has tried Entry 33 as a stand-alone provision and it conveniently ignored the context,
object and historical background of the sub-entries for reasons which are other than unintended.22
Entry 33, in its present form, was inserted in List III through the Constitution (Third Amendment)
Act, 1954. While inserting Entry 33 through Constitution (Third Amendment) Bill ,there was severe
opposition to the Bill from the members of Constituent Assembly. Their contention was that accord-
ing to 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. Further, the Constitution makers did not wanted to place matters
enumerated in Article 369 in the Concurrent List because that would make State autonomy merely
illusory and it would amount to the abrogation of the State legislative authority.
While discussing the Bill in September 1954,in his opening speech, Minister for Commerce and In-
dustry T.T. Krishnamachari clarified that the 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. His point was that it was the adverse food situation in the country that necessitated the
Amendment. But many eminent Opposition members were not impressed, and pointed that Article
369 was retained as a temporary feature in the Constitution because the situation in the country
[after 1947] was abnormal and the food situation was very bad. But the Constitution-makers knew
that the situation would return to “normal” in a few years. That was why they did not vest the listed
powers with the Centre for more than five years. Hence, its conversion into a permanent provision
was unwarranted.
Thus the amended Entry 33 empowers the Union government to deal with the scarcity of essential
commodities, prevent hoarding & black-marketing and irrational price rise, among others, in the
country and were never meant to be used generally as it is used now by enacting agriculture laws.
The parliament, at the time of carrying out the third amendment in 1954, could well have created a
separate entry in the concurrent list but it was not done. Rather foodstuffs and other items were
grouped with the existing item in Entry 33, which also indicates that the intention of the Union le-
gislature at that time was just to use or resort to these entries in exigent circumstances.
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. 23The entry 14 which deals with agricul-
ture is an exclusive jurisdiction of the State Legislature that why unlike Entry 26,27 & 28 it is not
22 https://thewire.in/law/farm-bills-legal-challenge-constitution-seventh-schedule-supreme-court
23 https://www.thehindu.com/opinion/lead/farm-acts-unwanted-constitutional-adventurism/article32776232.ece
subjected to Entry 33.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. Since the legislative demarca-
tion is clear due to which Centre did indirectly the thing which they could not do directly under the
garb of a colourable legislation and for this purpose, the central government invoked Entry 33 in the
Concurrent List (List III).

4. Sarkari Commission apprehension at weakening Federalism

The Sarkaria Commission has long since expressed it’s discontent on the Centre-State Relations,
they clearly pointed out that the Centre by enactment of the Essential Commodities Act, 1995 has
entered the sphere of Agriculture using entry 33 of the Concurrent list.
Tamil Nadu and West Bengal even demanded the transfer of Entry 33 and 34 of concurrent list to
the State list; however, the same was not adhered by the centre then.
For example :-Entry 34 in the concurrent list mentions ‘Price Control’ again giving scope for the
Centre’s entry into agriculture and invasion into the powers of the states.
The State government in Sarkari Commission report pleads that Entry 33 and 34 in the concurrent
list had a damaging impact on state autonomy in the sphere of agriculture and in its memorandum to
the Sarkaria commission had demanded that Entry 33 and 34 be transferred from the concurrent list
to the state list.The entry 14 which deals with agriculture is an exclusive jurisdiction of the State Le-
gislature that why unlike Entry 26,27 & 28 it is not subjected to Entry 33.Thus, using entry 33 & 34
by the Centre to bring trade and commerce laws was nothing but a colourable legislation.
Many States have complained to Sarkari Commission that not withstanding Entry 14 of State List,
the Union Government has made undue in roads in the sphere of agriculture, which according to
them should remain an area of exclusive State jurisdiction.
All the States have emphasised that agriculture is primarily the responsibility of States but most of
them have recognised the role of the Union Government in regard to many matters affecting the ag-
ricultural sector. Owing to the above mentioned facts it is an evident violation of federalism in In-
dia and the Bills passed by the Parliament should be annulled for the want of Constitutional power
of the Parliament and for the exercise of colourable legislation.

5. Judiciary stands on Federalism and agriculture

Since Independence Indian Judiciary has always maintained that Federalism is part and parcel of the
Basic Structure thereby indirectly voiced for the division of powers in accordance with the Consti-
tution of India. It is well accepted that the provisions of Constitution must be interpreted in the light
of the basic feature of the Constitution. Federaliam has been accepted as one of the basic features of
our Constitution. In S. R. Bommai v. Union of India, (AIR 1994) 24it was held as that:"Federalism
envisaged in the Constitution of India is a basic feature in which the Union of India is permanent
within the territorial limits set in Article I of the Constitution and is indestructible. The State is the
creature of the Constitution and the law made by Arts. 2 to 4 with no territorial integrity, but a per-
manent entity with its boundaries alterable by a law made by the Parliament. Neither the relative
importance of the legislative entries in Schedule VII, List I and II of the Constitution, nor the fiscal
control by the Union per se are decisive to conclude that the Constitution is unitary. The respective
legislative powers are traceable to Arts. 245 to 254 of the Constitution. The status quo the Constitu-
tion is federal in structure and independent in the exercise of legislative and executive power.
Likewise ,the Supreme Court in several cases upheld that the State has an exclusive jurisdiction in
agriculture matters including Intra-State agriculture markets.
In Ch. Tika Ramji & Others, Etc vs The State Of Uttar Pradesh & Others (1956) 25the expression
"industries" is defined to mean the process of manufacture or production and does not include the
raw materials used in the industry or the distribution of the products of the industry. It was conten-
ded that the word "industry" was a word of wide import and should be construed as including not
only the process of manufacture or production but also activities antecedent thereto such as acquisi-
tion of raw materials and subsequent thereto such as disposal of the finished products of that in-
dustry. But that contention was not accepted....."
In I.T.C. Limited vs. Agricultural Produce Market Committee (APMC) and Others, (2002.26
The Tobacco Board Act, 1975 had brought the development of the tobacco industry under the
Centre,however, Bihar’s APMC Act continued to list tobacco as an agricultural produce.In this case,
the question was if the APMC in Monghyr could charge a levy on ITC for the purchase of unpro-
cessed tobacco leaves from growers.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 market fees can be charged from ITC under the State
APMC Act.And further held that State laws become repugnant only if the State and Centre enact
laws on the same subject matter under an Entry in List III; and 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.

24Equivalent citations: AIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644
https://indiankanoon.org/doc/139734870/
25 Ch.Tika Ramji & Others, Etc vs The State Of Uttar Pradesh & Others on 24 April, 1956:(1956 AIR 676, 1956 SCR
393) https://indiankanoon.org/doc/33396/
26 .I.T.C Ltd. V. Agricultural Produce Market Committee & Ors [2002] Insc 34 (24 January 2002)
https://indiankanoon.org/doc/299584/
In the case of the Farm Acts of 2020, the applicable points are (a) and (c). With regard to (a), States
could continue to charge mandi taxes from private markets anywhere in the notified area regardless
of the Central Act. With regard to (c), the State legislation should prevail as agriculture is an exclus-
ive subject matter — Entry 14 – in List II.(Ramkumar,2020)27

6. Concluding remarks : “What cannot be done directly, cannot be done indirectly”

The recent trend, by which the Centre Government progressively encroaching in the sphere of State
jurisdiction with the force of its majority in both the houses of Parliament is very detrimental and
suicidal to the basic structure of India and it must be reversed at any cost. Historically speaking, in
the past Indira Gandhi had used the Emergency (1975-1977) to make some harmful amendments
that curtailed the power of the states in education and forestry. The present government is following
the similar modus operanda by using the health emergency caused by COVID-19 to push this con-
troversial laws through ordinances to cause devastating damage to the powers of the states in agri-
culture sector.Hon’ble Hidaytullah, J.,28 said;"It is equally well settled that the power to legislate on
a topic of legislation carries with it the power to legislate on an ancillary matter which can be said
to be reasonably included in the power given". By virtue of agriculture absolutely falling within
State list without any exception gives the State Legislature full authority even to make laws on an-
cillary things such as trade and commerce in agriculture.According to K.K. Basu, “passage of the
Bill would transform the Indian Constitution into a “unitary Constitution” instead of a “federal Con-
stitution” and reduce “all the States’ powers into municipal powers”. A “reactionary legislation” was
being introduced as “an innocuous piece of legislation”.
Recently, the Supreme Court emphasised in the NCT of (Delhi) case on the concept of collaborative
federalism, where both the Centre and the state governments should express their readiness to
achieve the common objective and they have to move on the path of harmonious coexistence and
interdependence irrespective of their differences. In a country like India the importance of federal-
ism is vital because different people from different background and culture live together. Neither it
would be possible for a Centre government to make laws for the whole country nor is it desirable in
the interest of the people with varied cultures, language and diverse backgrounds.
Based on the foregoing discussion, it can be concluded that the spirit of Indian constitution demands
that the centre and states are independent to make laws in their respective field assigned by the con-
stitution. Though the centre has supremacy in certain situations that is also mentioned in the Consti-
tution itself, but that does not gives them legitimacy to encroach upon the State list and If Centre
government keeps on transgressing the limits, then it will ultimately destroy the fabric of the basic

27 R. Ramakumar is Professor, Tata Institute of Social Sciences, Mumbai https://indiansapidnews.com/india/farm-acts-

unwanted-constitutional-adventurism/
28State of Rajasthan vs. G. Chawla (AIR 1959 SC 544)
structure of the Constitution i,e Federalism. Faizan Mustafa, (2020)29 in his article said that Federal-
ism, like constitutionalism and separation of powers, is not mentioned in the Constitution. But it is
the very essence of our constitutional scheme. The fact that under the scheme of our Constitution,
greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere
appendages of the Centre. With the sphere allotted to them, States are supreme. The Centre cannot
tamper with their powers.(S.R Bommai Case,1994) 30Hence the Independent Judiciary must playing
its judicial activism role interfere in such a situation suo-motu and delimit adversarial federalism of
the Centre and shows them the path of cooperative federalism in order to save the basic structure of
Indian Constitution. Though the Agriculture remains within the State list, the State is handicapped
from exercising any control over the agriculture and curtailed the power of the State to impose any
tax or cess by the APMC resulting in a huge income loss for the State Governments.
In the light of above premises, the author submits that the three Farm Acts on agriculture enacted by
the Union Parliament goes against the spirit of federalism ,hence legally speaking , their constitu-
tional validity shall be highly questionable & debatable before the Court of law once the matter
comes before it.
7 .Suggestion & recommendation
It is suggested that the existing Entries in the Union and Concurrent List constricting the jurisdic-
tion of States in respect of agriculture should be deleted and Entries 33 and 34 of the Concurrent
List needs to be transferred to the State List in order to save the Federal structure of Indian Consti-
tution which is one of the backbone of Indian Constitutionalism and further putting Entries 33 & 34
into the State List shall not cause any prejudice to national or public interest, otherwise conflict of
interest between the Union and States with respect to matters in Seventh Schedule may arise from
time to time in future whenever either of them comes-up with any legislation pertains to
agriculture .

29 https://indianexpress.com/article/explained/an-expert-explains-farm-acts-and-federalism-6622769/
30 S.R Bommai v. (AIR 1994 SC 1918) https://indiankanoon.org/doc/1610235/
BIBLIOGRAPHY

ACTS, REPORTS PROCEEDINGS AND DOCUMENTS

1.Farmer Produce Trade and Commerce promotion and Facilitation Act,2020

https://www.prsindia.org/billtrack/farmers-produce-trade-and-commerce-promotion-and-
facilitation-act-2020

2. Farmers empowerment and protection agreement price assurance and farm services Act-2020
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surance-and-farm-services-act-2020

3.The-Essential-Commodities-(Amendment)-Act-2020,
https://www.prsindia.org/billtrack/The-Essential-Commodities-(Amendment)-Act-2020,

4.The Constitution Assembly Debates,Vol I to Vol XI.

5.The Constitution of India

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Deep and Deep Publishers, New Delhi (1990).

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10. Seervaai H.M., Constitutional Law of India, Fourth Edition, Bombay(2000).

11. Tiwari O.P., federalism and Centre-State Relations in India: Towards A New Era of Mutual
Cooperation . Vedams Books, New Delhi (1996).
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