The Punjab Vidhan Sabha will be holding a special two-day session starting Monday, 19 October, “to bring in a legislation to counter the dangerous anti-farmer Farm Laws of the Central Government.”
Meanwhile, ahead of the session, the Punjab Cabinet on Sunday, 18 October, authorised Chief Minister Captain Amarinder Singh to take any legislative or legal decision he may deem fit to protect the interests of the state's farmers.
Punjab has seen the strongest opposition to the three laws recently passed by Parliament (which received Presidential approval on 24 September). CM Amarinder Singh had previously asserted that his government would fight the new laws, termed by him as “anti-federal”, tooth and nail, including by legal and legislative routes.
The legal route is likely to be a challenge in the Supreme Court under Article 131 of the Constitution, which grants the apex court jurisdiction over Centre-state disputes. Arguments there are expected to focus on whether the Centre had the authority under the constitutional scheme to bring in these laws, or whether their subject area was something the states have a right to legislate on.
The legislative route is what the new Assembly session on 19 October is set to explore. Here are the options on the table, and what any such attempt will have to watch out for.
WHAT ARE THE LIMITS ON PUNJAB’S OPTIONS?
No Repeal
The Punjab government cannot simply repeal the laws passed by the Centre, and nor can it just ignore the law. Legislation passed by Parliament and given Presidential assent are binding throughout the country, and cannot be removed by a state’s legislative Assembly – only Parliament has the ability to do that.
Technically, Parliament can only pass laws on issues which fall within the Union List or the Concurrent List in the Seventh Schedule to the Constitution. This sets out which areas can be legislated on by the Centre alone (Union List), states alone (State List) and both the Centre and states (Concurrent List).
If the Centre were to pass a law on a matter which fell within the State List, a state can argue that the legislation isn’t valid. However, there are certain items in the lists which are ambiguously enough worded to make an argument that they could be part of the Concurrent List.
In the case of the Farm Laws, critics claim that it deals with agriculture, which is part of the State List (item 14), while the Centre argues that it deals with trade and commerce of farmers’ produce, which falls within the Concurrent List (item 33).
In such cases (or for that matter, any situation), for a state to effectively take the view that the Centre’s law is invalid would require a ruling by the Supreme Court. If it fails to comply with the law before having done so, it could face a challenge by the Centre in the apex court itself or face mandamus petitions by individuals from the state in the high court or the Supreme Court.
No Dilution
Punjab cannot also just modify the Farm Laws to suit their purpose. If a law deals with a subject matter in the Union List, no state-level amendments are possible. If it falls within the Concurrent List, a State can pass amendments to the law, but these cannot dilute the provisions of the law, and can only strengthen them.
For instance, criminal law and criminal procedure are part of the Concurrent List. The Indian Penal Code and the Code of Criminal Procedure are Central laws, but states can pass amendments to enhance punishments under the IPC or upgrade certain offences to be non-bailable and cognisable. For instance, Madhya Pradesh made rape of a minor punishable with the death penalty, which is not possible in general for rape offences under the IPC.
CAN PUNJAB JUST PASS A SEPARATE LAW ON THE ISSUE?
If, as per the Centre’s own argument, the issue falls within the Concurrent List, then couldn’t Punjab just pass its own laws on each of the key issues at play, ie unrestricted trade outside APMCs, contract farming, and removal of essential commodities status?
This is a slightly tricky issue. The general rule in such a situation, where you have a law passed by a state in conflict with a law passed by Parliament (whether under the Union List or the Concurrent List), is that the law passed by Parliament prevails. This is the doctrine of repugnancy, as set out in Article 254 of the Constitution.
There is an exception to the doctrine of repugnancy, however, provided in Article 254(2). This says that if a law made by a state relating to a matter in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament, then the law made by that state can prevail within its territory – IF it is reserved for the consideration of the President of India AND they give their assent.
However, Punjab Chief Minister Captain Amarinder Singh has previously dismissed the possibility of this, noting in an interview with the Hindustan Times that he does not think President Ram Nath Kovind would approve any law passed by them in such a manner. Indeed, he even doubts the Governor of Punjab (appointed by the Centre, remember) would sign off on any Bill passed by the Assembly for this purpose, without which the question of the President’s assent cannot even arise.
This was why he had previously emphasised the legal option rather than the legislative option, with a challenge in the Supreme Court on the grounds that the Centre’s Farm Laws violate the federal structure in the Constitution.
SO WHAT CAN THE PUNJAB LEGISLATURE DO ON 19 OCTOBER? THE BADAL OPTION
Since the Punjab government can’t repeal or amend the Farm Laws themselves, or pass directly contradictory laws of their own, the Punjab government will have to get a bit more creative, and find a way to use the provisions of the Farm Laws themselves to neutralise their effects.
For some weeks now, Shiromani Akali Dal president Sukhbir Badal – who withdrew the party from the NDA over this fracas – has suggested one such option to address the biggest concern of farmers in Punjab.
Among the Farm Laws’ changes, the one which worries the farmers of Punjab the most is how it prohibits restrictions on sales outside a State’s Agriculture Produce Marketing Committee (APMC) mandis. Sales within these mandis or ‘market yards’ are regulated, whether with minimum prices or licencing systems and a system of taxes on purchasers that ensure their upkeep.
This has been of great benefit to farmers in Punjab, Haryana and parts of UP and MP, where they grow rice and wheat in massive quantities – though the supply is greater than the demand, the farmers still get a good price thanks to the APMC regulations (which in turn are tied in with the MSP system).
If there are no restrictions on trade of farmers’ produce outside an APMC, however, purchasers would no longer need to pay the APMC taxes, and farmers could end up having to sell at lower prices thanks to market forces.
Badal’s suggestion is to exploit a loophole in the Centre’s Farm Law that deals with this issue: the Farmers' Produce Trade and Commerce (Promotion and Facilitation) Act, 2020. Under this Act, farmers, traders and electronic trading/transaction platforms are given freedom to carry out trade in farmers’ produce without any restrictions in a “trade area”.
The crucial point is that the definition of “trade area” does not include ‘principal market yards’, and other state-run or private mandis that operate under a State APMC Act. Section 7 of Punjab’s APMC Act allows the state government to declare “any enclosure, building or locality in a notified market area” to be a principal market yard.
Therefore, Badal has suggested that the government can designate the entire state as a ‘principal market yard’. This would mean that the regulations applicable in APMC mandis would apply everywhere in Punjab, even private trade areas like the farmer’s house or the purchaser’s godown. This could perhaps be done even without an amendment to the Punjab APMC Act, through a simple notification, though amending the Act to specifically allow this would be a safer approach.
As such a move would technically be working within the framework of the Centre’s laws, which recognise that they don’t apply inside APMC mandis, it would be difficult for the Centre to argue that such a move was hit by the doctrine of repugnancy.
This is not the only legislation that can be drafted; other amendments to existing state legislations can be brought in to tackle specific issues like this in the other Farm Laws as well. his approach – ie using a definition or concept within the Farm Laws to effectively negate them – may be the best way for the Punjab government to achieve its aims.
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