As the 11th round of talks between farmer unions and the government failed to reach any consensus on Friday, the latter’s proposal of suspension of new farm laws seems to have become a point of contention between both parties.
In an effort to break the impasse, the government had offered to suspend the three farm laws for 18 months and to form a joint committee for further deliberations. However, Constitutional expert and former secretary-general of Lok Sabha P D T Achary says that there is no provision in law or in the Constitution which allows the government to keep the farm laws in abeyance. Excerpts from the interview:
Q) On Friday, the government asked farmer unions to reconsider its proposal of suspending farm laws for18 months. Does the government have the power to put forth such a proposal?
I don’t know why the government made such a proposal. There is no provision in the law or in the Constitution which allows the government to keep a law on hold. Now that the laws have been notified and the rules are framed, the government does not have the power. Supreme Court alone has the power to stay the operation of the law.
Q) The farm laws were notified in the official gazette in September after the President signed it. Are you saying that the government has no other option other than repealing the laws?
These new laws have been passed and notified only a few months ago. It can be repealed, but the government cannot keep it in abeyance. It is not legally valid for the government to keep the laws on hold. It is not permissible under the law. In every Bill that comes before the Parliament, there’s a commencement clause that says when the act will come into force. In most cases, the Parliament usually delegates the power to the government to fix a date for the commencement of the Act. Once that’s done, then the government has to implement or enforce the Bill.
In the case of farm laws, the legislative process is over. Now the government only has to implement it. They cannot keep the implementation in abeyance.
Q) Can the laws be kept on hold by another notification?
The notification of an act is as per the law. It is the power delegated to the government by the Parliament. There is no clause in the Bill which says that the government can keep it in abeyance once it is notified. After the date of commencement has been notified, as per the law, the government cannot issue another notification to keep it in abeyance. Once that notification has been done, there’s nothing further the government can do.
The government approaching the Supreme Court to stay the law will lead to a strange situation. It’s the government that was keen to pass the Bill, then why should it go the Supreme Court to stay it?
Q) The Supreme Court has stayed the laws last week and also constituted a committee.
The Supreme Court has powers under the Constitution to decide the vires (the constitutional validity of any law passed by the parliament). Using that power, the SC stayed the implementation of the bills. They have stayed the operation till the committee submits the operations.
Q) What is the process involved if the government wants to repeal the law?
The Parliament has the inherent power to make or repeal laws. There’s no separate provision required. Over the years, the Parliament has repealed several laws. The government can bring a Bill in Parliament to strike it down.
Q) Can the government repeal the laws by bringing in an ordinance?
The repealed law is also an Act. An ordinance is promulgated by the President, which is the executive. An ordinance, promulgated by the President has the force of an Act of the Parliament. Therefore, an ordinance can come for repealing the law. There are two views about the ordinance route of repealing.
A view is that an ordinance is usually brought by the government to meet the urgent requirement for a law when the Parliament is not meeting immediately.
Here, repeal of the law is not an urgent thing as compared to the requirement of a law to deal with a particular situation that emerged immediately. There is a qualitative difference between these two situations. Therefore, another view is that repeal cannot be done through an ordinance. However, the Supreme Court has not given any definite view on this.
Q) There is an argument that if the government repeals the law, it will set a bad precedence. Your comments.
Why should it be bad precedence? The Parliament has the power to enact a law and to repeal it. Parliament represents the will of the people. If people wish to repeal the law, then the Parliament can do so.
Q) There are many petitions before the Supreme Court challenging the Bills on its constitutional validity. But the Supreme Court hasn’t looked into it.
There are many issues on which petitions have been filed. But the Supreme Court hasn’t had any hearing on those aspects. I don’t want to comment on that.
The Supreme Court has the power to examine executive actions. It also has the power to review the legislation passed by the Parliament, when there is a challenge to the constitutionality of the law.
Q) Many states argue that agriculture is a State subject.
The main challenge is on that ground. In my view, the Bills can also be challenged on the grounds of the proceedings in the Rajya Sabha. If we look at the proceedings from a constitutional point of view, Rajya Sabha has not passed the three Bills as per Constitution. There should have been voting while passing the Bills, which didn’t happen. So it’s a violation of Article 100 of the Constitution. The proceedings are considered to be invalid if there’s a violation of the Constitution. It can be invalidated by the Supreme Court.
Q) The Centre used Entry 33 of List III to pass the farm bills. Many argue that this entry talks about ‘Trade and commerce” and it doesn’t include “markets”. What is your view on this?
The government has brought the Bills under item 33 of the Concurrent List, which deals with industrial trade, commerce, and food grains. “Markets” is mentioned as a State subject in entry 28 of List II. Agriculture, market, and land are state subjects. Parliament cannot make a law on these subjects. That’s why there’s no Parliament law on agriculture.
The SC has to decide on the Entry 28 issue and Entry 33. But, they haven’t examined the issue so far. Before that, it stayed the law and appointed a committee to resolve the issue. The Supreme Court usually stays the operation of a Bill after preliminary hearings.
For in-depth, objective and more importantly balanced journalism, Click here to subscribe to Outlook Magazine