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By: Prof. Ashaawari Datta Chaudhuri

The recent farm laws in September 2020, has changed the welfare state to a market state. There are three lists in the Constitution, under the 7th Schedule: List I is for Centre, List II is for the State and List III is called the concurrent list where both Centre and State can have power to legislate. The key issue here is the topic of agriculture. Would Centre alone have power to make legislation regarding agriculture or state or even both?

We have to first understand where agriculture is placed under the 7th Schedule. Agriculture comes under List II or State List. This means that the state can intervene in all matters which are concerned with agriculture. Agriculture is a sector that affects and concerns the whole nation. There are concerns about it being transferred to either the Concurrent list or the Central List. Disputes like these are usually settled by the Courts using various doctrines. This article will be speaking about the Doctrine of Pith and Substance. It shall try to understand what the judiciary usually does in these matters with the help of this doctrine.

The cause for concern here is whether the Centre can intervene in matters regarding the State. There were several petitions filed in the SC as soon as the farm laws were passed. Various lawyers argued against it. The Doctrine of Pith and Substance mentions that the Doctrine is applied when the subject matter of List I of the Seventh Schedule is in conflict with the subject matter of List II. The doctrine examines the true nature and substance of the legislation in order to determine which List it truly belongs to.[1] In the case of State of Bombay v FN Balsara[2], the Bombay Prohibition Act was challenged on the ground that it accidentally encroaches upon import and export of liquor across custom frontier – a central subject. The court while upholding the impugned legislation declared that the Act was in pith and substance a State subject even though it incidentally encroached upon a central subject. This doctrine has been mentioned in Article 246 of the Constitution of India.

There were several back and forth for this dispute before the Supreme Court. Advocate Vikram Hegde agreed with this view. He explained that agriculture is clearly covered under entry 14 of the State List under the Seventh Schedule of the Constitution, and markets are covered under entry 28[3]. Therefore the two issues are present in separate lists. He shared two ways in which this legal battle could be avoided. One would be through Article 249 which gives the Parliament power to legislate on a matter in the State List in the national interest. The second method is through Article 252 of the Constitution. This article allows the Parliament to frame laws for two or more states who pass a resolution requesting it to legislate on that specific State subject.[4]

Here for the case of farm laws, the Parliament is deriving its power from Entry 33 of the Concurrent List which speaks about distribution, trade and commerce of any product manufactured in the country. There are many other well-known precedent been set for this doctrine. In the case of Profulla Kumar Mukherjee v. Bank of Khulna,[5] the validity of the Bengal Money Lenders Act, 1946 was challenged which limited the amount and the rate of interest recoverable by a moneylender on any loan. It was argued that promissory notes were a Central subject and not a state subject. It was held by the Privy Council that the act was in pith and substance law in respect of ‘money lending and money lenders’ was a state subject and was valid even if it encroached upon a central subject which was promissory note.

Usually, in cases like this, the Courts generally put these types of disputes under pith and substance and don’t declare the law or topic concerned to be invalid. It does not dismiss the issue completely and determines its validity using the said doctrine. If the issue concerned falls under this doctrine, it becomes valid. The farm laws in questions delves into various sub-issues or topics which are distributaries of the broader concern- agriculture. The issues cover trade, commerce, produce, economics etc. This could cover a number of lists and the debate shall prevail. For now with the stay by the Supreme Court we can only anticipate what the ultimate decision is regarding this issue or whether there will not be any change.

Prof. Ashaawari Datta Chaudhuri is an Assistant Lecturer at JSBF. You can check her profile here.


[1] [2] 951 AIR 318, 1951 SCR 682 [3] [4] ibid [5] (1947) 49 BOMLR 568

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