One proposal from the Centre in the course of discussions with the agitating farmers is for the farmers to challenge in the Supreme Court the constitutional propriety of the farm laws. This proposal is welcome. There is little dispute that the validity or otherwise of the policy on farm trade and production underlying the new laws is the government’s business and not the court’s. However, whether the Centre has the right to frame laws on trade in farm produce, given that agriculture is in the State List of subjects, is a question that the Supreme Court is best placed to answer.
The government relies on Entry 33, Clause b of the Concurrent List, to assume the authority to make the laws in dispute. Entry 33 (b) is foodstuffs, including edible oilseeds and oils. A petition before the court challenges introduction, in 1954, of Entry 33 in the Concurrent List, because it infringes on the states’ right to frame laws on, under Entry 14 of the State List, agriculture, and, under Entry 26, trade and commerce within the state. However, Entry 26 is qualified by the phrase, subject to Entry 33 of the Concurrent List. Whether trade in farm produce other than oilseeds, raw cotton, raw jute and cattle fodder, all of which are specifically mentioned in Entry 33, falls in the Concurrent List depends on whether foodstuffs can mean raw produce such as rice and wheat. The Supreme Court is best placed to pronounce on this, and it should be asked to.
There is another matter of constitutional propriety in the farm laws. This pertains to the exclusion of disputes under the laws from the ambit of the courts, intended as they are to be resolved by committees of civil servants. The farmers should take up the Centre’s offer to put these questions before the court while leaving the aspect of policy choice to the government. The Centre has the duty to form policy to end mindless production of unwanted grain. Whether it is best discharged by the new laws, or crop diversification policy should be added, is not for the court to decide.