This comes after talks between the farmers’ delegation and the government came to a standstill. While the government has proposed amendments to the laws, the farmers have unequivocally rejected these amendments, holding steadfast to their demand for complete repeal.

Multiple petitions are pending before the Supreme Court challenging the validity of the laws. States such as Kerala, Punjab and Chhattisgarh have announced that they will move the apex court to challenge the Centre’s overreach into agriculture which falls under the State List. The apex court is scheduled to hear these petitions on December 16. 

The Constitution of India divides different subjects between the Union and state governments under the Seventh Schedule. While theyrespectively possess exclusive legislative domain over subjects in their lists, both the Union and state governments can pass laws in subjects mentioned under the Concurrent List. In case of a clash between Union and state laws under the subject of the Concurrent List, the Central government’s law will prevail.

The Centre has justified its move citing its power under the Concurrent List to legislate on aspects of “trade and commerce”.In fact, soon after the farm bills were passed, many media houses published opinion pieces stating that the Centre was well within its rights to legislate on the subject.

Bloomberg Quint quoted Senior Advocate Rakesh Dwivedi saying, “The real aspect is that these laws deal with how farmers can sell. It enlivens the choice and in pith and substance deals with trade and commerce and production. It has nothing to do with agriculture.”

However, in an interview with Newslaundry, Balbir Singh Rajewal, chief of the Bharatiya Kisan Union’s Rajewal faction pointed out, “Farmers don’t trade. They have no relation to trade. They market their goods and marketing is again a state subject.”

Talking to The Leaflet, constitutional law expert Senior Advocate Mohan Katarki said, “Agriculture is a state subject. However, it seems the Centre is banking on Entry 33 of List III. But this entry which talks of “Trade and commerce in …” doesn’t include “Markets” namely trading

places or platforms. “Markets” is specifically mentioned as a state subject in entry 28 of List II. Therefore, the Farmers Produce Trade and Commerce Act is clearly outside the competence of Parliament.”

The governments of Punjab, Chhattisgarh and Rajasthan have drafted their own Farm Bills to amend the central legislation.“The amendments passed by the states are prima facie legal in my view. They derive this power from the State list,” said Katarki.In the past, many experts have argued in favour of shifting agriculture from the State list to the Concurrent list.

Incidentally, this was discussed by the Constituent Assembly as well.

Shibban Lal Saxena had moved an amendment to include agriculture under the Concurrent List. He argued, “What I really want is that agriculture and land revenue systems all over India should be amendable to planning on an all-India scale.”

Cautioning against its inclusion in Union List, he reasoned, “I do not want them to go to List I, but they should be put in List III so that the Centre will not interfere with the states and will only advice and co-ordinate their activities.”

Opposing the amendment, T T Krishnamachari said, “At the same time, agriculture happens to be the principal industry in this country, and

practically one of the main functions of the State, and beyond taking certain powers for the purpose of coordination, I do not think the Centre is at all capable of handling this vast problem.”

He informed the Assembly that the Drafting Committee had put forth a similar proposal to Provincial Ministers but faced general resistance. A resistance that still exists today.

At a press meet, MG Devasahayam, former Chief Secretary, Government of Haryana, observed, “The agriculture in Punjab and Haryana is completely different from agriculture in Tamil Nadu and Kerala. Then how can there be one central law to regulate it all?”

As per the Inter-State Council’s Report of 2015, the states had sought for enlargement of their jurisdiction in agriculture that was constricted by some entries in Union and Concurrent Lists. The report observed, “Planning and coordination of agricultural development is a matter of common concern to the Union and the states. Obviously, this aspect cannot be wholly left to the individual states. Indeed, it requires a cooperative endeavour between the two levels of government.”

Moving agriculture to Concurrent List will give the Centre clear superseding powers over the states, unless the President grants assent to the state Act. “In principle, the final power must lie with someone, either Centre or state. There should be finality in governance. It can’t be ambiguous,” said Katarki.

While the Supreme Court had issued notice to the Centre in one of the petitions challenging the farm laws back in October, the farmers have little faith of any positive outcome despite having a strong case.

Balbir Singh Rajewal said, “Unfortunately, the image of the Supreme Court is such that people have lost their confidence in the judiciary. The way the former Chief Justice of India accepted the Rajya Sabha seat completely destroyed whatever was even left. Otherwise, if the Supreme Court had taken suo moto notice, then these Acts wouldn’t have lasted for even two days. They would have been declared void immediately. It is because the Supreme Court did not play its role that farmers had to agitate on a nationwide scale.”

The farmers feel let down by all the four pillars of democracy.With the ball in the farmers’ court, one waits to see what will happen next. But one thing is clear, the agitation is not going to die down any time soon till the government truly pays heed to their voices.