Tuesday Brief

What is ailing Congress party? Everyone knows that they have least faith in democratic values, whether it is intra party or parliamentary systems. We all know there is no democracy in their party for last so many decades as one family is presiding over the party, and it looks like things are going to remain same for years to come. After their debacle in last 2 general elections, it looks like they have forgotten even parliamentary democracy and system, For last 6 years it has been seen in the parliament whenever any bill is presented instead of discussing the same on the floor of house about is pros and cons, they start disturbing the both house of parliament and see to that the parliament is adjourned.  Earlier they could do so as Modi govt could not muster majority in Rajya Sabha, bur after 2019 the situation is changed and Modi govt has been able to get all the bills  tabled by them , passed in both houses of parliament. Recently same thing happened when Modi govt tabled the 2 bills related to farm business, and both were passed.

Yesterday Congress Supremo Sonia Gandhi directed states where Congress is in power to override the legislations by restoring to a key constitutional provision that allows them to frame their own laws on subjects in the concurrent list under certain circumstances, under article 254(2) of the constitution. One Congress MP from Kerala has moved the Supreme Court (SC) seeking to declare the Farmers’(Empowerment and Protection) Agreement of Price Assurance and Farm Service Act 2000, and related notifications as unconstitutional and illegal. Even Punjab CM Amarinder Singh (Congress) has stated that Punjab govt will challenge these farm laws in SC. There were however, difference within Congress with some party strategists saying approaching the SC may not be useful. Their fear is that if the laws are upheld by SC, it could take the sting out of the controversy about jurisdictional issue of Centre approaching on the states’ turf.

Now What is Article 254(2)

It refers to a scenario where a law made by a state legislature concerning any matter that falls in concurrent list contains any provision repugnant to the provisions of any earlier law made by Parliament or an existing law, with respect to that matter. In such a case the law made by the state legislature will prevail, provided it is reserved for the consideration of the  President of India and receives his consent.

As per legal experts–

How can states use this provision

This provision gives flexibility to a state legislature to make a law different from what is applicable in the state due to a parliamentary law already in operation there. This flexibility is only available on matters that are in concurrent list  to schedule 7 of the Constitution. Under the list both the Parliament and state could legislate-subject to the rule that the parliamentary law will prove over the state.

Will this provision help the states

Though states could come out with their own bills to some extent to override the statues passed by the Parliament, none of these Bills will be effective unless the President accords his consent to such Bills.

What happens if President does not give consent

According to legal experts, it’s sole prerogative of the President whether to give the consent or not. It is a rare circumstance, wherein state Bill  is accepted by President without Centre on board. In case, Centre is opposing the bill, then the President, who works on the aid and advise of the Council of Ministers can refuse to give his consent.

Can states approach SC challenging the law

States can approach the SC under Article 131- invoking the court’s  “ original jurisdiction”- that allows a state to file a suit in the SC in case of any dispute that it may have with Central Govt.

Looking into all the above points it will not be easy for Congress ruled states to change the law in their state and get the consent of the President. I do  not know how SC will help state under Article 131. It will be difficult  by state to prove that this law will be harmful for their state’s farmers.

In my opinion Congress party and its leaders are looking into their self interest, as most of their state leaders are involved in Mandis and APMCs, and many of them have tax free farm income.

Waiting for your feed backs/views/comments.

Anil Malik

Mumbai, India

29^th September 2020.