Diluting Federalism and Fundamental Rights-A Case Study on Farm Bills, 2020

Introduction (Indian Federalism)

Indian Federalism in the constitutional context finds no trace of the word “federation” in its text, rather the word “union” has been preferred as drafted under Article 1 of The Constitution of India mainly because “union” portrays India’s indestructible nature. Federal concept of governance was adopted as a means by Constitutional framers to bring about national unity in a country where existed such vast socio-cultural heterogeneity via an established center and also at the same time realizing the significance of maintaining regional autonomy of states. Indian federalism has always been a point of contention, mainly due its placement in a unique setup of dual polity. Time and again efforts have been made to decipher the true nature of Indian Federalism by various constitutional experts; where on one hand KC Wheare described Indian federalism as “quasi federal” and K Santhanam pointed out the reason behind the rise in centralization of powers, on the other hand, certain political scientists adopted a different take, with Morris Jones coining the term “bargaining federalism” and Granville Austin described Indian federalism as a “cooperative federalism”. The main intent behind this research is to run a discourse on whether the federal nature of Indian constitution as opined in Bommai case is truly cooperative in nature or does it also have a combative undertone to its meaning as far as incidental encroachment is concerned. Further to explore the constitutional safeguards available to the citizens in such scenarios of incidental encroachment. Even after seven decades since the framers first postulated the draft Constitution, contentious issues regarding incidental encroachment, the scope and extent of residuary powers, etc. still prevail.

“The States under our Constitution are in no way dependent upon the center for their legislative or executive authority”.^[1]In fact inter-governmental co-operation is an essential medium to achieve Rule of law as was opined by John Locke, which in this context signifies that the law of the land is the apex authority; nothing is above it and both union as well as state governments derive their authority from the Constitution of India. While running a discourse on the Indian Constitution, it becomes pertinent to question, understand and derive, as was propounded, the very essence of it and for this purpose the constituent assembly debates form an important source. On 13 December, 1946 the “objectives resolution” moved by Jawaharlal Nehru laid down the fundamentals of the constitutional structure which furthered the intent of a federal dream by clearly stating, “the said territories shall possess and retain the status of autonomous units together with residuary powers and exercise all powers and functions of government and administration unless such powers are vested in the union” which makes the distribution of powers and duties crystal clear.^[2] Yet on further exploration of this very intent, it is essential to recognize that nowhere in the bare text of the Indian Constitution is federalism mentioned rather a more tactful choice of words has been made under Article 1 of the Constitution which grants India the status of a “Union of States” and the intent behind this choice as explained by Dr. B.R Ambedkar was to establish the indestructible nature of Indian Federalism and to distinguish it from the “truly federal” structure of the American Constitution.^[3]

The strong status as laid by the constitution in favour of the center is evident from the powers vested in it through the union list which contains more subjects and also the most important ones than that of the state list, further, the center also has an over-powering authority over both, the concurrent list as well as the residuary powers. Such asymmetric quasi-federal dynamics give rise to complexities, dissenting opinions, overlapping of power, clashes, combative government etc. and create a hospitable environment for suppression and violation of rights of people to take place in. Now that the paradoxical nature of Indian federalism is preliminarily established, the question the author seeks to address is that whether or not this overlap has somewhere in the process downplayed the Fundamental Rights of the people upon which the constitution so proudly stands?

Centre v State Conundrum

The Curious Case of Diluting Federalism

Just like the doctrine of separation of powers, federalism too in the Indian context exists only in spirit. Though there are multiple provisions in the Indian constitution which clearly demarcate various spheres over which the center and the states have power to make laws, respectively, in spite of that, Indian federalism cannot be termed as ‘truly federal’ in nature as is the case of federalism in the USA. One such provision being, Seventh Schedule of the Constitution which contains three lists; Union list, State list and Concurrent list circumscribing the power spheres in which each governing body is bound to function. Even though the aforementioned lists provide for a clear demarcation of subjects over which the center and the state can legislate yet Article 254 under the Indian constitution is a clear indicator of asymmetrical nature of Indian federalism as it empowers the central legislation to prevail in case of a conflict.

The Hon’ble Supreme Court in State of West Bengal v. Union of India^[4] has held Indian constitution as not federal in nature. Further it was in S R Bommai v. Union of India^[5] that the SC in a nine-judge bench judgment recognized Indian constitution as federal. “…….The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power,” the SC said.

Incidental Encroachment

In the State List, eight entries contain terms relating to agriculture: Entry 14 (agricultural education and research, pests, plant diseases); 18 (rights in or over land, land tenures, rents, transfer agricultural land, agricultural loans, etc.); 28 (markets and fairs); 30 (agricultural indebtedness); 45 (land revenue, land records, etc.); 46 (taxes on agricultural income); 47 (succession of agricultural land); and 48 (estate duty in respect of agricultural land).^[6]

It is clear that the Union List and Concurrent List put matters relating to agriculture outside Parliament’s jurisdiction and give state legislatures exclusive power. No entry in respect of agriculture in the State List is subject to any entry in the Union or Concurrent Lists.

Where Does The Lacunae Lie?

The government has backed these legislations by contending that they are set out to transform the Indian agrarian sector by inviting private investment through private players and big corporates. Under The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, the farmers are expected to produce crops as per the contract that they enter into with the big corporate investors; these contracts will also include a mutually agreed remuneration.

This is the exact point where the whole dispute arises, the farmers are at a potential risk of being bound by unfavourable contracts which will contain clauses that can be beyond the understanding of an average Indian farmer which means a risk of being run over by the big corporate. Further the agrarian sector has always been bound by many environmental factors. Environment becomes a potential player when it comes to the efficiency of our farmers; the production of crop is dependent on multiple variables like rain, climate, geographical conditions etc. Hence, environment is a huge determining factor in the fate of our farmers. Inability to provide for what was mutually agreed in the contract due to no fault of one’s own can put farmers in a bit of a fix.  Thus, this legislation puts our farmers in a vulnerable state up against the big corporate investors.

Constitutional Challenges

At The Outset

The Hon’ble Supreme Court in Union of India v. H.S. Dhillon^[7] had enumerated the grounds upon which the constitutional validity of parliamentary laws can be challenged:-

1. That there has been an encroachment and the laws made actually lay under the jurisdiction of state list.

OR

1. The law being challenged violates the fundamental rights.

What becomes pertinent to note here though is that in cases of central legislations being challenged on constitutional grounds, the SC hears such matters with a presumption that these laws will be constitutional^[8] which further increases the burden of proof on states and individuals who challenge these acts, to prove the invalidity beyond the reasonable doubt. In the recent past, the SC did not stay the implementation of UAPA and CAA either, which shows a pattern of decisions that tend to favor the center.

In Remembrance of – Of the People, For the People, By the People

The very existence of the words, ‘We, the people of India….’ has become rather comical when seen in light of the inimical state of affairs our farmers today are in the midst of. It was only a matter of the President giving assent to the much controversial farm bills, earlier passed by the parliament and widespread protests by farmers started to begin across the country with major concentration in Punjab and Haryana. Though small scale protests had already picked up pace earlier in various parts of the country with demonstration being reported in parts of Karnataka, Kerala, Odisha, Tamil Nadu, Maharashtra, Uttar Pradesh amongst many other states. The farmers along with their representative unions continue to oppose and with persistence the three new legislations, namely- The Farmers’ Produce Trade and Commerce (Promotion and Facilitation); The Farmers (Empowerment and Protection) Agreement of Price Assurance; and Farm Services and The Essential Commodities (Amendment) which were passed with a sizeable majority. India remains immersed in peaceful protests. The shoddy way in which the bills were passed was also a point of criticism and has been characterized as being ‘unconstitutional’ by those who opposed the bills, a mockery of democratic form of governance, if you will.

The author believes that to deal with such Kafkaesque state of affairs, if not overcome it in its entirety, it becomes essential and more so indispensable to realize one’s roots; which means to perceive our constitution the way our visionaries expected us to and to understand their foresight. Which means resolving this conflict cannot be an isolated priority rather to resolve it while upholding the due process of Law is of the most far reaching importance. Furthering this intent, the author brings out of the dark and into focus the question that what are the constitutional safeguards available to our farmers for protection of their fundamental rights enshrined as ‘inalienable’ in the Indian Constitution.

Constitutional Safeguards Available to the Farmers

Fundamental Rights

At the very outset, Article 13 of the Indian Constitution is empowered to render a law, void, that fails to be consistent with the fundamental rights as enshrined under the Constitution. Article 13, in its essence can be termed as an enabling provision as it gives real value an effect to part III of the Constitution and in that sense reinstates people’s belief in their governments.

The Hon’ble Supreme Court in Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia^[9] had reiterated – actions taken in haste can be held mala fide, the same had been previously opined in Dr. S.P. Kapoor etc. v State of Himachal Pradesh & ors^[10]. The three bills, in this context become vulnerable to criticism for not taking into consideration the plight of a poor farmer, making up the majority. The average Indian farmer is now forced to compete against the wealthy influential farmer while selling his produce to private players who tend to favor the powerful. This fuels the possibility of small scale farmers getting lost somewhere in the process, which is then further strengthened with the decreasing role of Agriculture Produce Market Committees (APMCs). In that sense, the bills remain incomplete and can be said to be passed in haste as it fails to provide adequate safeguards to them who are vulnerable and hence, mala fide. In this context, the bills have the potential to violate the fundamental right to equality of poor farmers, as they remain silent on the possible consequences post enactment, which can mean inequality. Thus, these bills construct a gap for Article 14 violations to take place in.

As fundamental rights remain to be of interconnected nature and are found to co-exist in multiple scenarios, the presence of this gaping hole catering to the violation of Article 14 will naturally also lead to the violation of Article 21, in the same breath. Article 21 as enshrined under the Indian constitution protects the right to life and personal liberty of a person. This particular provision has been interpreted in the widest way possible by the top court while dealing with constitutional challenges, one of which is right to livelihood. As long as these bills hold their inherent discriminative nature towards poor, small scale farmers they will very organically violate their right to livelihood and hence violate Article 21 of the Indian constitution.

The constitution further empowers our farmers to firstly, express their concerns freely and voice their opinions upon legislations that concerns them and the entire country under Article 19 (1) (a). Secondly, the farmers have the right to assemble peaceably [19 (1) (b)], to form unions or associations for furthering their cause [19 (1) (c)]. These rights remain significant in the light demonstration by farmers from Punjab and Haryana in furtherance of their Dilli Chalo Campaign which started on 25^th November, 2020 which saw more than 300,000 farmers marching towards Delhi on foot and in tractors^[11] with the aim to protest against the 3 central legislations^[12]. Lastly, to carry out their trade, occupation, trade in a respectful manner [19 (1) (g)].

Directive Principles of State Policy

Embodying the concept of a welfare state, enshrined under part IV of the Indian Constitution are Directive Principles of State Policy (DPSP). DPSP are principles that aim at providing social and economic justice and the same is directed to be carried out by individual states. Shifting frame to the current situation of resistance by farmers against the central legislations, mentioned hereunder are the safeguards provided to our farmers under the DPSP:-

Article 38(2) states that “The state shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”^[13] Further, under Article 39(c) states that “The state shall, in particular, direct its policy towards securing— that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;”^[14] Under Article 43 of the Indian constitution, “The State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.”^[15]

Further under Article 51(c) of the Indian constitution, states are under an obligation to harbor respect for International Law and treaties. It is pertinent to note that International Law today has acquired a very different form and shape from before, the role of international organizations and treaties, conventions and sanctions cannot be overemphasized in today’s day and age where contemporary times are more cosmopolitan than ever.^[16] India being a member to the Human Rights Council has an international obligation to inculcate in its domestic legislation provisions in conformity with the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas^[17]. The aforementioned UN Declaration seeks to protect the human rights of those covered under the purview of Article 1 which includes any person engaged in agricultural practices. Hence, the states as well as the center are under an obligation to recognize these rights and also uphold them.

Conclusion

The author has very consciously tried to keep this particular bit out of the entire discourse up till now but feels this uncontrollable urge to mention it specifically as a concluding note. On completion of his term as the 44^th President of the USA, Barack Obama left behind a letter addressed to Donald Trump, America’s 45^th President. Quoting hereunder, the relevant bit which holds so much water in the present context, as follows-

It is essential to understand, a governmental regime no matter how powerful it may be should never turn authoritarian or totalitarian on its citizens because at the end, it’s the citizens of India out of whom the elected government derives its powers. A government that tries to forward its personal agenda in its own manner, own expression, limiting and restricting its citizens to the extent of turning hostile towards them has failed its country.

^[1] Constituent Assembly Debates, 1946, vol. XI, p. 976.

^[2] Constituent Assembly Debates, 1946, vol. I.

^[3] Constituent Assembly Debates, 1946, vol. VII, p. 43.

^[4] State of West Bengal v. Union of India, 1964 SCR (1) 371.

^[5] S R Bommai v Union of India, 1994 SCC (3) 1.

^[6] Faizan Mustafa, “An Expert Explains: The broad arguments for and against the three central farm laws”, The Indian Express, 29 September, 2020.

^[7] Union of India v H.S. Dhillon, 1972 SCR (2) 33.

^[8] Ram Krishna Dalmia v. Justice S R Tendolkar, 1959 SCR 279.

^[9] Bahadursinh Lakhubhai Gohil v Jagdishbhai M. Kamali, 2004 AIR (SC) 1159.

^[10] Dr. S.P. Kapoor etc. v State of Himachal Pradesh & ors, 1982 SCR (1)1043

^[11] Hannah Ellis-Petersen, “Indian farmers march on Delhi in protest against agriculture laws”, The Guardian, 30 November, 2020.

^[12] “Dilli Chalo, Farmer’s protest enters fifth day”, The Hindu, 30 November, 2020.

^[13] The Constitution of India, 1949, Article 38(2).

^[14] The Constitution of India, 1949, Article 39(c).

^[15]The Constitution of India, 1949, Article 43.

^[16] At, https://lawwire.in/legal-columns/international-law-vanishing-point-of-jurisprudence/

^[17] United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (adopted on 17 December, 2018)