Congress mulls using Article 254(2) to bypass farm laws: All you need to know about the rarely-used provision

Congress interim president Sonia Gandhi has advised party-ruled states to explore a rarely-used legal provision in order to oppose three contentious farm laws that have recently received the President’s assent. The provision — Article 254 (2) of the Constitution — essentially allows a state law to prevail over a conflicting Central law in some circumstances. A Congress party statement has said, “Congress President has advised the Congress-ruled states to explore the possibilities to pass laws in their respective states under Article 254(2) of the Constitution, which allows the state legislatures to pass a law to negate the anti-agriculture Central laws encroaching upon the state’s jurisdiction under the Constitution.” The statement further notes, “This (states passing laws negating Central legislations) would enable the states to bypass the unacceptable anti-farmers’ provisions in the three draconian agricultural law(s) including the abolition of MSP and disruption of APMCs in Congress-ruled states. This would also alleviate the farmers from the grave injustice done by the Modi government and BJP.” What is Article 254 (2)? The text of Article 254 (2) of the Constitution states, “Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.” For a better understanding of what the Article entails, we can consider the various aspects of the provision separately. Firstly, the Article applies only when a state law on a subject which is the Concurrent List conflicts with a nationwide law. In such a case, the state law can prevail over the Central law if the President gives his or her assent to the former. The President, however, acts on the aid and advice of the Council of Ministers. However, Article 254 (2) represents the exception, not the norm. Article 254 (1) of the Constitution essentially states that if there is any inconsistency between laws passed by Parliament and those passed by a state legislature, the former should prevail. Further, a proviso to Article 254 (2) states that even if the President gives his or her assent to a state law passed under the provision, the Parliament can later amend or repeal the law.

In essence, Congress-led state governments are unlikely to be able to thwart the implementation of the farm laws through Article 254 (2).

However, the passing of such laws by state governments will be a statement of political intent. History of the provision Congress leader Jairam Ramesh noted on Monday that former finance minister Arun Jaitley had asked states to resort to Article 254(2) of the Constitution to override provisions of 2013 Land Acquisition law.

As FM Arun Jaitley got states to resort to Article 254(2) of the Constitution to override provisions of 2013 Land Acquisition law, a law he’d fully supported as LoP in RS.

States should now follow the same advice to undo the damage caused by the #FarmBills that have become Acts. pic.twitter.com/cyCxgwkbdu

— Jairam Ramesh (@Jairam_Ramesh) September 28, 2020

In a blog post on 1 September, 2015, Jaitley had written in the context of an ordinance to amend the land acquisition law, “The provisions of Article 254(2) clearly provide that a State Government can bring a legislation on a Concurrent List Subject which conflicts with the Central legislation provided the Presidential assent is given to such legislation.” He had further said that if “any State wishes to make some amendments in the Central law, the same would be permitted by the Central Government.” At the time, Tamil Nadu had attempted to bypass the 2013 land acquisition law by inserting Section 105-A in the legislation. However, in July 2019, the Madras High Court held that if the government intended to use the old state laws, it will have to re-enact them. According to Deccan Chronicle, the high court had then noted in its order, “In order to revive these Acts, the state must re-enact these statutes, in accordance with Article 254 (2) of the Constitution of India and obtain the assent of the President. Merely by inserting section 105-A and the 5th schedule in the new Act, these impugned enactment(s) do not get revived.” Political faceoff over farm laws President Kovind on Sunday gave assent to the three contentious farm bills passed in Parliament last week. These laws have triggered farmers’’ protest, especially in Punjab and Haryana. These three farm bills are: The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 and The Essential Commodities (Amendment) Bill 2020. Parliament cleared the bills in the Monsoon Session. The laws are aimed at liberalising the agriculture sector and allowing farmers to sell their produce anywhere in the country they want at a better price. The Opposition led by the Congress is critical of the manner in which these bills were passed in Parliament. They have alleged the bills were cleared “unconstitutionally” in a “complete disregard” to Parliamentary norms. The Congress also proposes to challenge them in court. With inputs from PTI