Article 254 (2) of the Constitution: How can States bypass a Central law?

Context: Some States are exploring the possibility of passing laws to override the three agricultural laws (The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, the Farmers (Empowerment and Protection) Agreement on Price Assurance & Farm Services Bill, 2020, and Essential Commodities (Amendment) Ordinance, 2020) passed recently by Parliament by using Article 254 (2) of the Constitution.

Analysis

  • Article 254 (2) of the Constitution essentially 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 late 2014, the BJP government in Rajasthan took this very 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.
  • Punjab is contemplating to amend the Agriculture Produce Market Committee Act and declare the entire State as a principal mandi yard.
  • This would circumvent the provisions in The Farmers Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, which was passed in Parliament.
  • The declaration of mandi yards ensures that any procurement outside their ambit is considered illegal, farmers do not get a price less than the MSP, and the State gets its mandi fee.

What is Article 254 (2)?

  • 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.”
  • 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.

Distribution of Legislative Subjects

  • The Constitution provides for a three-fold distribution of legislative subjects between the Centre and the states, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List) in the Seventh Schedule.
  • The Constitution expressly secures the predominance of the Union List over the State List and the Concurrent List and that of the Concurrent List over the State List.
  • Thus, in case of overlapping between the Union List and the State List, the former should prevail.
  • In case of overlapping between the Union List and the Concurrent List, it is again the former which should prevail.
  • Where there is a conflict between the Concurrent List and the State List, it is the former that should prevail.
  • In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List, the Central law prevails over the state law. But, there is an exception.
  • If the state law has been reserved for the consideration of the president and has received his assent, then the state law prevails in that state.
  • But, it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter.

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