States Planning to Bypass Central Legislation

• 29 Sep 2020

Why in News

Recently, many states are exploring the possibilities of passing legislation under Article 254(2) of the Constitution, to negate the enforcement of three Farm Acts passed by the Central government under Entry 33 of the Concurrent List.

• Entry 33 of the Concurrent List mentions trade and commerce, production, supply and distribution of domestic and imported products of an industry; foodstuffs, including oilseeds and oils; cattle fodder; raw cotton and jute.

Key Points

• The Article 254(2):
  
  • It enables a State government to pass a law, on any subject in the Concurrent List, that may contradict a Central law, provided it gets the President’s assent.
    
    • In 2014, the Rajasthan government took this Article 254 (2) route to make changes to the central labour laws — the Factories Act, the Industrial Disputes act, and the Contract Labour Act — which subsequently got the President’s assent.
  • However, the Parliament is not barred from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
• Background:
  
  • The three Farm Acts includes:
    
    • Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
    • Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020
    • Essential Commodities (Amendment) Act, 2020.
  • In short, the Acts aim to do away with government interference in agricultural trade by creating trading areas free of middlemen and government taxes outside the structure of Agricultural Produce Market Committees (APMCs).
    
    • They also aim to remove restrictions on private stock holding of agricultural produce.

Distribution of Legislative Subjects

• Article 246 adopts a threefold distribution of legislative power between the Union and the states.
• The subject-wise distribution of this power is given in the three lists of the Seventh Schedule of the constitution:
  
  • List-I- the Union List
  • List-II- the State List
  • List-III- the Concurrent List
• Union List: Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List.
  
  • It includes the matters of national importance and the matters which require uniformity of legislation nationwide.
  • This list includes 98 subjects (originally 97) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit and so on.
• State List: The state legislature has exclusive powers (not during emergency) to make laws with respect to any of the matters enumerated in the State List.
  
  • It includes the matters of regional and local importance and the matters which permit diversity of interest.
  • This list includes 59 subjects (originally 66) like public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theaters, gambling and so on.
• Concurrent List: Both, the Parliament and state legislature can make laws with respect to any of the matters enumerated in the Concurrent List.
  
  • It includes the matters on which uniformity of legislation throughout the country is desirable but not essential.
  • However State legislation operates to the extent that it is not in conflict with the Central legislation. At times, the very presence of a central legislation can negate the state’s ability to legislate.
  • This list has at present 52 subjects (originally 47) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, labour welfare,economic and social planning, drugs, newspapers, books and printing press, and others.
  • The 42^nd Amendment Act of 1976 transferred five subjects to Concurrent List from State List i.e education, forests, weights and measures, protection of wild animals and birds, and administration of justice; constitution and organisation of all courts except the Supreme Court and the High Courts.
• Other Features:
  
  • The power to make laws with respect to residuary subjects i.e. the matters which are not enumerated in any of the three lists, is vested in the Parliament.
  • Parliament has power to make laws with respect to any part of the territory of India not included in a state even though that matter is one which is enumerated in the State List.
    
    • This provision is related to the Union Territories or the Acquired Territories (if any).

Source: TH