THREE FARM BILLS AND THE UPROAR

Thousands of farmers have been protesting on outskirts of Delhi since 26^th November against three Farm Acts presented by Government of India that received the assent of President on September 27, 2020.  The three bills are:

1. Farmers Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020
2. Farmers (Empowerment and Protection) Agreement on Price Assurance 
3. Farm Services Bill, 2020 and Essential Commodities (Amendment) Bill 2020.

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020

It aims to permit the sale of agricultural produce outside the mandis regulated by the Agricultural Produce Marketing Committees (APMC) constituted by different state legislations.

The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 

It provides for contract farming. The Essential Commodities (Amendment) Bill 2020 deregulates the production, supply, distribution of food items like cereals, pulses, potatoes, onion and edible oilseeds.

The Essential Commodities (Amendment) Bill 2020

It deregulates the production, supply, distribution of food items like cereals, pulses, potatoes, onion and edible oilseeds.

WHAT IS MINIMUM SUPPORT PRICE?

MSP is the minimum price paid by the government when it procures any crop from the farmers. It is announced by the state-run Commission for Agricultural Costs and Prices (CACP) for more than 22 commodities on an annual basis, after calculating the cost of cultivation.

WHAT ARE THE FEARS OF FARMER?

 Farmers are fear that the new Acts will abolish their earlier system of trade, with several other consequences threatening their property and livelihood. The following are the general fears which every farmer is scared of becoming a reality if new Acts will be implemented:

1. Based on the recommendations of the Commission for Agriculture Costs and Prices, the Department of Agriculture and Co-operation, Government of India, declares Minimum Selling Prices every season. This year the Reserve Bank of India said in a report that MSP and open-ended creates problems, which was followed by a statement of Sh. Nitin Gadkari where he said we need to look for alternatives. They fear that the government of India will abolish the Minimum Selling Price (MSP) in the nearby future, with the abolishment of Mandis, which will force them to sell crops at much minimum price without protection from the government.
2. The implementation of new Acts will give rise to a parallel mandi that will make sure that the demand and flow of goods in traditional mandis will fall. Due to shortage, subsequently, the governments will abolish the old mandis, after which the only choice of selling goods will be private enterprises; hence they will be available at their discretion for exploitation.
3. Under the new Acts, with the implementation of amendment in essential commodities act, the prohibition in the hoarding of essential commodities will be removed, since the government will abolish the notified essential commodities. This will provide an opportunity to private enterprises in hoarding the goods, creating a shortage of supply and raise the prices due to high demand in the economy.
4. If there are private contracts between farmers and company, if there is any loss of crops due to act of God, or the company fails to provide the requisite amount to the farmer or bank, the land of the farmer can be subject to recover the debt. Hence, the land will be taken from them, making them labour from the farmer.

SWAMINATHAN COMMITTEE REPORT

The farmer’s unions have demanded the implementation of Swaminathan Committee in their demand along with repealing the three farm laws. The Swaminathan Committee laid down five reports running into more than 300 pages, where they dealt with all the problems faced by farmers in practical life. Following were the recommendations of the Committee-

1. A single market shall be established to tackle the cartelization problems formed by various traders;
2. Abolishment of road taxes and local taxes to ensure free movement of farm produces;
3. The state governments outside markets can levy no tax.
4. The committee report emphasized on direct farmer consumer linked markets with institutional support.
5. Developing a model agreement to avoid exploitation of farmers. The model will convey comprehensive, clean, equitable and farmer-centric agreement to protect farmers.
6. In addition to the model, if there are discrepancies, institutional support should be provided to the farmers other than dispute resolution mechanism as against big corporates.
7. Minimum Selling Price should be enforced throughout the country for imparting dynamism to agriculture by providing safety to crops, people and regions.

DEMAND OF FARMERS

Following were the demands laid down by union of farmers before the discussion committee set up by the central government:

1. Provide Minimum Selling Price as a legal right to the farmers as protection from private contractors and government mandis;
2. Provide state procurement of all crops a legal right as food is wasted due to lack of storage facility by the central government;
3. Accept recommendations of Swaminathan Committee in practice and on paper;
4. Raise the MSP to at least 50% more than the weighted average cost of production;
5. Repeal the stringent commission set up on Air Quality Management in National Capital Region and adjoining Areas by the Central Government in 2020;
6. Slash diesel prices for agriculture use by 50%;
7. Withdrawal of Cases against farmer leaders all over India. Poets, Intellectuals, Lawyers, Writers, Human and democratic rights Activists, those who have been jailed in false cases should be released;
8. Repeal the Three Farm laws.

LEGAL RECOURSE SUBSTITUTED BY ADMINISTRATIVE RECOURSE & REACTIONS OF BAR COUNCILS

There are certain clauses, which bar a farmer from seeking relief in the courts of law. The matter of dispute as per the new Act can only be referred to a Sub-Divisional Magistrate, from which an appeal can be filed before District Collector. The issue has been raised by several Bar Council.

The Doctrine of Separate powers is a doctrine of constitutional law under which three branches of government, i.e., executive, legislative and judiciary are kept separate for maintaining checks and balances on other branches. However, the Act has parked the power of granting justice and relief to an administrative person holding positions. A Sub-Divisional Magistrate or District Collector don’t have the broad knowledge of concepts like partnership law, contract law and other applicable laws, which are protected by the courts of law from the very inception.

For better understanding, the following are the two sections that cause of major concern:

Section 13 of The Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 states

“ No suit, prosecution or other legal proceedings shall lie against the Central Government or the State Government, or any officer of the Central Government or State Government or any other person in respect of anything which is in good faith done or intended to be done under this Act or of any rules or orders made thereunder.”

Section 15 of The Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 states,

“ No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter, the cognizance of which can be taken and disposed of by any authority empowered by or under this Act or the rules made thereunder.”

Considering the extent of scope available to various government institutions and third parties, various bar council and association have extended their support to the cause of farmers.

Bar Council of Punjab and Haryana issued a press note extending their support to farmers agitation stated,

“ The Bar Council of Punjab and Haryana opposes the new Agriculture Acts passed by the Central Government. These new enactments are not only detrimental to the interests of farmers but are also detrimental to the interest of lawyers. The Bar of civil court jurisdiction in these new Acts is a serious challenge to the independence of the judiciary. The separation of judiciary and executive is a salient feature of our constitution. Under the new Acts, the disputes will be heard by SDM/ADMs who are not trained to hear the litigation involving civil consequences and moreover, they are administrative organ of the government and would be unable to protect the rights of farmers. The disputes arising out of new enactments will involve commercial matters, contract act agreement and partnership matters which is under the preview of civil courts and therefore, baring the civil court jurisdiction is detrimental to the interest of lawyers and is an effort to undermine the judiciary.”

Supreme Court Bar Association President, i.e., Senior Lawyer Dushyant Dave, opined the newly passed farm laws as unconstitutional and illegal. He further said that these laws would legalize the exploitative money lending system in the villages. While delivering an opinion on Agriculture Acts, he stated,

“This will promote profiteering. There is no protection to the farmers as most of them are small and marginal. How will they enter into agreements with traders and understand the terms? The situation will become such that traders will destroy the farmers. The government should think about these laws as it is their responsibility to hear the farmers, address the legal issues and bring an amendment to the law. The most important amendment should be that the trader should give in writing that the Minimum Support Price (MSP) will be ensured to the farmers. The government has also mentioned that they want to keep the judicial system outside of the purview of this law. The joint secretaries and district magistrates will not be able to dispense justice to the farmers. Our judiciary is capable to dispense justice to the farmers. The government should include the judiciary system. This law also impacts the ‘democracy at the grassroots’. The farmers till now could do collective bargaining at Agriculture Produce Marketing Committees (APMC). It is true that all APMCs were not working fine. But that does not mean that the government should bring in an even more exploitative law.”

 The Bar Council of Delhi, while extending their support in favour of the concerned rose by farmers, wrote an open letter to Prime Minister of India. In the letter, they urged the Prime Minister to repeal the new farm laws in the interest of justice as the new laws only benefit the big enterprises. In their letter, the Bar Council of Delhi stated,

“How can any litigation having civil consequences be given for adjudication to a structure involving administrative agencies, controlled and run by executive authorities. Your kind attention is invited to constitutional provision for separation of judiciary from executive to maintain its independence and probity as enshrined under the Constitution but by resorting to these laws, what is not permissible under our Constitution has been provided. It will substantially damage district courts in particular and uproot the lawyers. Under our Constitution, a fine pyramid of justice dispensation system has been envisioned. The district courts are part of basic structure and being the principal courts of original jurisdiction is the foundation of the pyramid. These courts are at the doorstep of people, where one approach for access to justice by the trend in the recent past is to destroy courts. This will seriously jeopardize the interest of the public, as getting justice at the doors of bureaucracy is far from reality.

The mindset behind the move to oust the jurisdiction of civil courts and transfer of power to bureaucrats, acting as executive officers, to decided disputes between the traders and the farmers will lead to corruption, and touts will victimize unimaginably. Shutting the doors of civil courts to entertain disputes, pertaining to the subject matter under these Acts will prove disastrous. You are champion of the cause of masses and while you were not in power, you always said that right to protest is a universal right and whatever enactment or any act of the government is not suitable to masses and there is agitation, the government in power must listen to their grievances and come out with an amicable solution.”

 Till now, no amicable solution has been reaching between the Government of India and Farmer Unions. With the passing of day by day, the Unions have been able to gain widespread support from various sectors. The farmer’s unions have demanded the implementation of Swaminathan Committee in their demand along with repealing the three farm laws.

PROPOSALS OF GOVERNMENT TO AMEND THE LAWS FOR SATISFACTION OF FARMERS

After multiple rounds of negotiation between the government and unions, they have clearly informed the union that repealing the three laws is impossible. However, the government sent a proposal to the farmers, in order to ease tensions between both sides. The proposal includes the following areas where government assured amendment to the farmers:

1. The central government is willing to give a written assurance that MSP will continue.
2. The government is willing to consider the demand and concern raised by the farmer that the Farmers Union feel that the SDM’s court is a lower court and they should be allowed to go to higher courts.
3. The government will contemplate having equal tax for both private as well as government-regulated mandis.

SUPREME COURT ON FARMER’S PROTEST

On 17^th December 2020, a petition was pleaded before the Supreme Court of India, Rakesh Vaishnav and Ors. V. Union of India and Ors., W.P. C. No. 1118/2020, for removal of farmers from Delhi borders as they are restraining public route of Delhi residents. Senior Advocate Harish Salve on behalf of petitioner pleaded that no right is absolute. The right to protest cannot deny the residents right to move freely along with the right to life, which is threatened by the pandemic. Further, he added that due to restrictions in the movement of goods, several prices are hiked resulting in suffrage.

A bench comprising of Chief Justice of India SA Bobde, Justices V. Ramasubramanian and AS Bopanna, while winding up the matter, upheld the freedom of farmers to hold a peaceful protest and conveyed their concern by telling the central government to actively engaging for resorting farmers demands.

While delivering the order, the Supreme Court held:

1. The protest is a part of a fundamental right and is exercised subject to public order.
2. Where there is no violence, loss of property or life, it should not be obstructed.
3. Farmers protest should be allowed to continue without impediment and without any breach of peace either by protestors or police.
4. An impartial committee should be formed to regulate the disputes and reach the common consensus of solution between the protestors and government.

Challenging the validity of Farm Laws another bench will later decide it during Christmas vacation.

 
AUTHOR OF THE ARTICLE

Adv.SUYASH GAUR
Junior Legal Research Associate 
Indian Law Watch
Passed his LLB in the year 2020. He has done Intellectual Property Rights.Suyash has been a bright student of law who has won several competition during his career in law.