By Anjali Baskar, Nyayshastram
Introduction
Celebrities like singer Rihanna and activist Greta Thurnberg have spoken out against the internet shutdowns in the Delhi- NCR region through the micro-blogging site Twitter. Since then, many Indian public figures have spoken out either supporting the farmers or the government. Many took offence to Rihanna’s tweet and felt that non-Indians should not interfere in the matters of India’s political events. In this article, the author will analyze the bills, cover the role of the Supreme Court, judicial intervention, issue of national security, and suggestions to come to a compromise.
About the Farmers’ Bills
The three laws -- Farmers' (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020; Farmers' Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and The Essential Commodities (Amendment) Act 2020 -- took effect on September 27th in the Lok Sabha and September 30th in the Rajya Sabha.[1] Even after four rounds of meetings and hours of talks with the government officials, the farmers are still adamant about their needs and demands. The government assures that MSPs will not be abolished and will still be in the market, but the farmers are still fixed on their demands to scrap the three bills.
The first bill talks about making provisions and laid down certain frameworks to establish contract farming. Such a framework will help in the formation of contracts between the buyers and farmers regarding the deal even before the production of the requisite crops happens. The government believes that this bill will act as a reform because due to the limited number of traders in the government authorized mandis the phase of cartelization had slowly begun. Therefore in order to stop the same, the government passed this law in the parliament in the month of September 2020.[2]
Before the second bill, farmers were required to sell their produce only to the government set up mandis also known as the Agriculture Produce Market Committee (APMC) markets. It is claimed that after the implementation of this bill the farmers are empowered to sell their produce anywhere and to anyone in the market, they are no more constrained to sell in the mandis. The government believes that APMC markets have become fixed distress sale markets which have restricted the sales and limited the income of the farmers, and hence has become a means of exploiting the farmers.
Under the third bill, the farmers will be empowered to sell their Agriculture Produce in the other states rather than their very own state, i.e. It allows farmers to conduct both inter-state and intra-state trade of their Agriculture Produce. This will allow them to move out of their restricted APMC markets and allow them to sell their produce to other states where they can get better prices and earnings. Along with this, the state will not be allowed to charge any sort of market cess or fees from the farmers who come to sell outside their APMC markets.
Alleged Benefits of the Bills
The Central Government and certain economists believe that after the implementation of these laws the farmers can be benefitted in the following ways:
The farmers will be free to form contracts with traders and businessmen to make deals of their crops even before the beginning of the production phase which will allow them to transfer the risk associated to the businessmen or traders.
The bill will defeat and abolish the monopoly trade system in the government-authorized mandis also known as the APMC markets as the farmers will be free to sell their produce anywhere and to anyone in the marketplace.
It will allow the farmers to store inventory under the Essential Commodities Act, which before was constrained under the stocking limits imposed by the ESCA.
The farmer bill will bring up “freedom of choice” to the farmers as it will enable an open market to sell agriculture produce to both inter-state and intra-state markets.
Cons of the Bill
The majority of farmers are protesting from Punjab, Haryana and Uttar Pradesh. These are the states where the farmers are most benefited from the MSPs after the Green Revolution. The major problem for these farmers is that the government implemented these bills to scrap MSP as a concept with the context of providing a better platform to the marketplace of trading agriculture produce.
It is considered to be exploitative by labour law activists and farmers’ unions, as they are more geared towards benefiting corporations rather than individual farmers earning a livelihood.
In total, about 23 crops come under the provisions of MSP, although the government only buys rice and wheat from these farmers. The farmers fear that the 2 bills that are passed in both the houses will result in the abolishment of the procurement process of the government as well as the MSPs because they are the most benefited and secured under these two provisions.
Another fear of the farmers is that the corporate will now be involved in the trading process with the farmers. Farmers say that they do not trust corporates and in the long run, the corporate will tend to manipulate and exploit the farmers in the name of the business which is detrimental for the future of the agriculture industry in India.
Powers of the Supreme Court- To What Extent can They Interfere?
There have been reports of the Supreme Court dismissing PILs related to this issue and asking for a response to the Centre. Even though SC keeps talking about the right of farmers to protest[3], they also have planned to hear petitions to remove the farmers from Delhi’s borders.[4] Meanwhile, multiple petitions are pending before the Supreme Court challenging the validity of the Farm Bills. States such as Kerala, Punjab, and Chattisgarh have announced that they will move the apex court to challenge the centre’s overreach into agriculture which falls under the State List.[5]
The Constitution of India divides different subjects between the Union and State Governments under the Seventh Schedule. While they respectively possess exclusive legislative domain over subjects in their lists, both the Union and State governments can pass laws in subjects mentioned under the Concurrent List. In case of a clash between Union and State laws under the subject of the Concurrent List, the central government’s law will prevail.
The Centre has justified its move citing its power under the Concurrent List to legislate on aspects of “trade and commerce”. In fact, soon after the farm bills were passed, many media houses published opinion pieces stating that the Centre was well within its rights to legislate on the subject. While the Supreme Court had issued notice to the Centre in one of the petitions challenging the Farm Bills back in October, the farmers have little faith in any positive outcome despite having a strong case. The author believes that the apex court has the authority to suspend implementation of these bills till they hear the matter[6], and should be focusing on more issues that benefit the public at hand.
When it comes to the scope of judicial interference in policy matters, guidelines like the Vishakha Guidelines have been introduced by the Supreme Court to fill in some vacuum or erroneous decision taken by the legislature. The Vishakha Guidelines were directions issued to the legislature to correct the omission of any sexual harassment law to protect women at the workplace. Similarly, in the case of Brij Bhushan v. State of Delhi[7], the Supreme Court struck down the East Punjab Public Safety Act 1950, on the ground that pre-censorship restricted the freedom of the press.
In the case of Ramesh Thapar v. State of Madras[8], Supreme Court again struck down the Madras Maintenance of Public Safety Act 1949, on the ground that unless a law restricting freedom of speech and expression is directed against undermining the security of the state or to overthrow it, such law can not fall within the reservation of clause (2) of Article 19.[9] Simply put, there should be a balance maintained between judicial activism and judicial interference. Thus, even if the SC does not declare the farm bills unconstitutional or even if the farm bills do not infringe upon our fundamental rights, they can still interfere to correct the mistakes made by Parliament without encroaching upon their powers.
Issue of National Security
After World War II, most of the recruits were demobilized and came back to their respective villages. The worst affected provinces by the 1947 Partition were Punjab and Bengal. More than a million innocents were slaughtered between July and September of 1947 in Punjab alone. This was the direct consequence of dismembering a heavily militarized region without thinking through its implications.[10]
Post-1947 agriculture, armed forces, and immigration continued to be the main occupations of the people of Indian Punjab. Over a period of time due to the institution of the Recruitable Male Population policy in 1966 the share of Punjab in the Armed Forces started dropping and as barriers to immigration became higher agriculture soon became the mainstay for the people of the state.
Incidentally, even today Haryana, which has only 2.2 percent of India’s population, contributes 7.82 percent to the Armed Forces. Punjab with 2.4 percent of the National population still contributes 16.6 percent to the Armed Forces even though these numbers are a far cry from the pre-1966 days when both these states were a part of Joint Punjab formed post the merger of Patiala and the East Punjab States Union (PEPSU) and erstwhile British Punjab in 1956.
After the 1965 war, the MSP regime and public procurement were introduced in 1966-67 for wheat and later expanded to other commodities. This gave Punjabi farmers assured returns on their produce. The farm laws now rob them of this safety net because the government now wants to dismantle this social security architecture.
Some who support the farm laws are saying that people from other countries supporting the farmers are “external forces” and are a threat to our “sovereign.” But every country has a right to condemn the actions of others, as this can be considered a human right violation as well. Celebrities like Sachin Tendulkar, Karan Johar and Akshay Kumar[11] talked about how others should not be participants, but merely spectators for this movement. Yet, Indians living in India do get involved in global protests also like Black Lives Matter and Me-Too. Freedom of speech and expression here is not unreasonably being used, so it should not be considered as a threat to our sovereign.
Possible Guidelines
Supreme Court can make a list of guidelines to control the issue as follows:
Direct Centre to provide ample evidence of the benefits the Bill would provide.
Direct Centre to not be violent towards protestors as that would increase further agitation.
Direct Parliament to put a pause on passing the Bills into an Act until after the pandemic.
Find a middle-ground between removing MSPs completely as a result of the bill and declaring the bill unconstitutional.
Conclusion and Suggestions
The author believes that this bill is of low priority considering all the higher issues in the midst of the pandemic and that SC should have suspended implementation before. It could have easily been put up on hold for a couple of months so that things could get to normal and everyone had a chance to understand the provisions of the bill. Farm laws do undermine the food security of India’s farmers, especially when the debt burden of the Food Corporation of India (FCI) in the current fiscal has already crossed 3.15 lakh crores and the government has no plans of defraying the debt.
Now, we can see that the protest like any other matter has been taken. A political route. Instead of going into the depth of the issue, the opposition is using it as propaganda to fulfil its deeds against the central government. The farmers are demanding scrapping of the three bills and even after 4 back to back meetings with the authorities, the result is not satisfactory. The Government is agreeing and is open to negotiations but are not ready to scrap the bills. This is where the conflict is increasing between the Farmers and the Government.
The only fruitful solution is when both the parties, i.e. the farmers and the government, meet up again and devise a beneficial plan for both. The Government should hear the grievances of the farmers and also explain the provisions of the bill and their aim for the future. The government should hear and give assent to the needs of these farmers and do the required amendments to end the fears of the farmers. In January 2021, the Supreme Court had recently ordered the government to stay the 3 farmers’ bills for a couple of years until an expert unbiased committee is formed, which can cause too much uncertainty. Hopefully, a compromise will be reached where the farmers do not have to give up too much of their demands.
[1] Arfa Javaid, 'Farm Laws 2020: Everything You Need To Know About The New Agriculture Reforms In India' (Jagranjosh.com, 2020) <https://www.jagranjosh.com/general-knowledge/farm-bills-indian-farm-reforms-2020-1606901455-1> accessed 8 January 2021. [2] Animesh Raizada, 'Farm Bill 2020: The Protest Story - Lawjure' (Lawjure, 2020) <http://www.lawjure.com/farm-bill-2020-the-protest-story/> accessed 9 February 2021. [3] 'SC Says Farmers Have Right To Protest, Suggests Centre Put Farm Laws On Hold' (The Indian Express, 2020) <https://indianexpress.com/article/india/supreme-court-farmers-protest-news-committee-7108445/> accessed 10 February 2021. [4] 'Supreme Court May Hear Plea To Remove Farmers From Delhi’S Borders On Dec 16' (The Indian Express, 2020) <https://indianexpress.com/article/india/supreme-court-may-hear-plea-to-remove-farmers-from-delhis-borders-on-dec-16-7103828/> accessed 9 February 2021. [5] Megha Katheria, 'Farm Laws Are Unconstitutional; But Will Supreme Court Strike Them Down?' (TheLeaflet, 2020) <https://www.theleaflet.in/farm-laws-are-unconstitutional-but-will-supreme-court-strike-them-down/#> accessed 8 February 2021. [6] 'SC Should Have Suspended Implementation Of Farm Laws Till It Heard The Matter' (The Indian Express, 2020) <https://indianexpress.com/article/opinion/columns/farmers-protests-supreme-court-implementation-of-farm-laws-7115781/> accessed 9 February 2021. [7] Brij Bhushan v. State of Delhi, AIR 1950 SC 129. [8] Ramesh Thapar v. State of Madras, AIR 1950 SC 12. [9] Fayaz Ahmed Bhat, 'Doctrine Of Judicial Review In India: A Judicial Perspective By: Fayaz Ahmed Bhat' (LatestLaws.com, 2020) <https://www.latestlaws.com/articles/doctrine-of-judicial-review-in-india-a-judicial-perspective-by-fayaz-ahmed-bhat/#:~:text=Judicial%20Review%20is%20the%20power,a%20supreme%20law%20i.e%20Constitution.> accessed 10 February 2021. [10] Manish Tewari, 'Manish Tewari | How Farm Laws Might Hurt National Security' (Deccan Chronicle, 2021) <https://www.deccanchronicle.com/opinion/columnists/121020/manish-tewari-how-farm-laws-might-hurt-national-security.html> accessed 10 February 2021. [11] Shephali Bhatt, 'Rihanna | Fan Friction: Rihanna's Tweet Sparks Controversy, Divides Indian Fandom' (The Economic Times, 2021) <https://economictimes.indiatimes.com/tech/tech-bytes/fan-friction-rihannas-tweet-sparks-controversy-divides-indian-fandom/articleshow/80741266.cms> accessed 10 February 2021.
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