Ed Note: In this post, the authors argue that the recent Farm Bills are beyond the legislative competence of the union government, and the process of passage of these bills evaded parliamentary procedure.
Article 79 of the Constitution of India guarantees a bicameral legislature through the upper and lower houses of the Parliament. The concept of bicameralism rests on a political idea of parliamentary democracy and the need for accountability. It is based on a diverse representation of various political parties in the process of lawmaking and ensures decentralisation of powers in a quasi-federal structure like ours. Thus, it forms the cornerstone of the edifice sanctified by the Constitution.
A threat to this is the presence of a brute majority of a government in any of the house of the Parliament. It degrades legislative scrutiny and at the same time, blurs the idea of accountability. However, in the absence of a majority, the evasion of the parliamentary authority of a house and enactment of laws beyond legislative competence does the same effect of a brute majority. In this post, we argue that the contentious Farm Bills now laws are beyond legislative competence and their manner of passage in the Parliament has deprived accountability and legislative scrutiny to the members of Rajya Sabha.
2.Brief analysis of the Farm Bills
The Farm Bills were initially promulgated by ordinances in June 2020 by the President under Article 123 of the Constitution. The three ordinances collectively referred to as ‘Farm Bills’ are namely, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020; The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020; and The Essential Commodities (Amendment) Ordinance, 2020. They were later tabled in the Parliament as per Article 123(2)(a) with an expectation that some healthy deliberation will take place. But, they were passed in a hurried passage with the latest one on 22 September 2020, which received the assent of the President on 27 September 2020.
A. Agriculture as ‘interstate trade and commerce’?
Before agriculture was considered as interstate trade and commerce, states regulated it through their respective Agricultural Produce Market Committee (hereinafter referred to as ‘APMC’) acts. APMC is a system regulated by state governments under Entry 14 in List II of the Seventh Schedule of the Constitution.
The enactment of these three laws together marks the entry of the union to govern agriculture within the umbrella of interstate trade and commerce as they do not have the direct competence to make laws in this regard under List I. The government can only regulate this subject either under its power of ‘inter-state trade and commerce’ in Entry 42 or through Entry 97, wherein the latter allows the union government to exercise its extraordinary residuary powers.
In the present case, the government cannot use its residuary powers because it can only be used when the matter is not covered in any other list. Entry 14 of List II already includes agriculture as its subject. Moreover, if a particular Entry has been excluded from List I, the intention of the legislature is apparent that they did not want to include that Entry in the list. Further, matters relating to agriculture are not remotely covered in List III that allows both the union and state government to make laws. Thus, government taking advantage of the COVID-19 pandemic deliberately constituted agriculture as interstate trade and commerce. This, as held in K.C Gajapati Narayan Rao v. State of Orissa, is an act of colorable legislation as the competency of the states have been taken away and it does not matter what was the motive behind the enactment.
B. No guarantee on minimum support price
According to the Farmers Agreement on Price Assurance and Farm Service Act 2020, a farmer is supposed to enter into a farming agreement with the sponsor to sell their produce as per section 3, for a maximum period of five years. The price of the farming produce will only be determined accordingly as per the mutually acceptable quality, grade, and the standard of the produce. However, as the price is no more fixed, there are genuine reasons to believe that farmers might not receive the expected price of their produce. This can be backed from the fact that around 94% of the farmers want the MSP to continue as observed in the 2016 Evaluation of the Efficacy of the MSP (page 83). It is considered as an economic safeguard against exploitation and unfair trade practices.
3. How were Parliamentary Procedures evaded in the passing of Farm Bills?
Ordinance making powers are exceptional powers based on constitutional necessity, as was held in Krishna Kumar Singh v State of Bihar. The constitutional necessity could be substantiated from the fact that such powers can only be exercised when the Parliament is not in session. However, it is influenced by the union cabinet as per Article 74. The union cabinet under Article 74 provides aid and advice to the President on its functions and the President ‘shall’ act in accordance with that. That is why the scope of legislative scrutiny becomes necessary. However, in the passing of Farm Bills, the government did not allow any scope of debate amidst the protests staged by the opposition members of the Parliament. Moreover, the parliamentary procedure in passing the farms bill in Rajya Sabha was evaded.
According to Rule 252 of The Rule of Procedure and Conduct of Business in the Council of States,
“If the opinion so declared for a voice vote is again challenged, votes shall be taken by operating the automatic vote recorder or by the members going into the Lobbies”. However, the Bills in the Rajya Sabha were passed by a chaotic voice-vote despite a demand by the opposition for a division or recorded vote. The opposition was constantly protesting and demanding a reference to the select committee for a non-partisan evaluation and deliberation. The usual practice of passing bills using a voice-vote is resorted to when there is overwhelming support for the proposed legislation. This was not the case here as Akali Dal showed clear opposition. The video footage here, here, and here of the Rajya Sabha proceedings show the audio was cut-off after the bills were passed and there was no clear decision in the favour of the Ayes(Yes). Despite ample grounds, opposition and citing of relevant rules, the Deputy Chairman passed the bills amidst the chaos.
Previously, the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 was deliberately recognised as Money Bill (Article 110) by the Speaker of Lok Sabha. Article 109 adopts a special procedure for Money Bills that need not be introduced in Rajya Sabha and can only be sent for recommendations once passed in Lok Sabha. The Rajya Sabha is bound to return the bill with/without recommendations within 14 days. Chandrachud J. in his dissenting opinion in the Aadhaar judgment called out against superseding the constitutional authority of Rajya Sabha as a fraud on the Constitution (Dissenting Opinion: part E, para.117).
4. The Way Forward
The issue with the passing of the bill through a hurried passage, in addition to the fact that the subject has been regulated as inter-state trade and commerce, poses a pertinent question before us – whether the evasion is a mere irregularity? This is because disregard to parliamentary procedures amounting to the mere irregularity is not open to judicial review within Article 122(1) of the Constitution. This provision was regarded as purporting ‘special jurisdiction’ to legislature to regulate its own business in M S M Sharma v. Krishna Sinha. However, if the evasion touches upon violations of constitutional mandates, mala fides, or non-compliance with the rules of natural justice and perversity, this would not be a mere irregularity. It will be termed as illegality susceptible to judicial review, as held in Keisham v. The Hon’ble Speaker of Manipur Legislative Assembly.
These acts have diminished the accountability of the government, which as stated by Prof. Upendra Baxi, is a key facet of the rule of law and strikes a balance between the governors and the governed. This is especially concerning because the government has the absolute majority is Lok Sabha. The extent of brute majority is dangerous and can be understood from the recent example of Hungary’s indefinite state of emergency. Moreover, the government has now found a way to supersede the constitutional authority of Rajya Sabha by ignoring the importance of dialogues and accommodation which is essential for a democratic policy. Amidst the protests by the farmers who are battling all the odds, and failure of the government to negotiate with the stakeholders, it is now time for the Judiciary to step in to the rescue.