The Farmer Protests Affect Us All
The Three Farm Bills
For several weeks, public attention has been on ongoing farmer protests against three laws on agriculture passed in September 2020 by the Union Government of India. On 26 January 2021, violence that accompanied a Republic Day protest became a source of controversy, even though major farm unions behind the protest denounced the violence saying its perpetrators were not from the core of their movement.
General public sympathy for farmers, ingrained since years through public slogans like ‘Jai Jawan, Jai Kisan’, has made it difficult for the government to crack down on dissent in the same manner as in other cases. Rhetoric on the subject has heated up with the matter becoming internationalised. The global press has recognised the issue, largely in sympathy with the protesting farmers. International celebrities have tweeted on the matter, provoking a response from the Ministry of External Affairs claiming this is based on misinformation and an unwarranted interference in India’s internal affairs. Some Indian celebrities have tweeted in support of the government, with one going to the extent of claiming the protesting farmers are actually terrorists seeking to implement an agenda driven by China.
For those not conversant with the details, the controversy is over three laws:
1. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, that opens space for private players to operate markets where farmers sell their produce.
2. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, that lays the ground for the emergence of contract farming.
3. The Essential Commodities (Amendment) Act, 2020, that removes earlier restrictions on quantities of agricultural produce that any person or business may hold.
Concerns have been expressed by the protesting farmers, as well as many experts on the subject, that the first two acts will facilitate the exploitation of farmers by large corporates, and the third act will catalyse hoarding by traders to manipulate prices at the expense of farmers. This is feared to be another nail in the coffin of farmers, who have faced high levels of economic distress since a long time: The National Crime Records Bureau counts close to three hundred thousand suicides by debt-ridden farmers in the last twenty-five years, and many believe the number is far higher.
I do not want to get into the issues of agricultural economics and farmer welfare in reference to these three laws, for that has already received much analysis. If you want a rigorous and dispassionate take on the laws, I highly recommend this excellent article by Sudha Narayanan, Associate Professor at the Indira Gandhi Institute of Development Research, published in The India Forum. Noteworthy in this essay is the sentence, “….at a time when much of the developed world is re-evaluating the sustainability of their agri-food supply chains, India, as a nation of smallholders, has an opportunity to create a model of agriculture that at its core strengthens collective farmer organizations and small and medium-scale local enterprises, as opposed to behemoths that control entire supply chains.”
What I wish to draw attention to here are three serious constitutional problems with the farm laws that farmers are protesting, and if we pause to reflect on them, we will realise that the farmer protests contain deep ramifications that affect us all.
The Autonomy of States
India is a federal republic of states where the Constitution of India protects state autonomy by providing for a division of powers between the Union (Central Government) and the states. This is done by dividing all subjects into three lists: (i) The Union List, which is the province solely of the Central Government, covering key areas such as defence, foreign affairs, and currency; (ii) The State List, which is the province of the states; and (iii) The Concurrent List, which are under the joint jurisdiction of the Centre and states.
Agriculture is in the state list and passing laws on agriculture should be a state subject, not a central subject. While the Centre can draft model laws suggested as a base for state legislation, interference in law making of individual states is only permitted under one of the following situations:
1. When the Rajya Sabha passes a resolution, supported by not less than a two-thirds majority, that such law is in the national interest.
2. When two or more states make a request to Parliament, surrendering their power to make laws on the subject.
3. When necessary to implement international treaties.
4. When there is a national emergency, contingent on such law ceasing to be operative six months after expiry of the emergency.
5. When the Constitution has failed in a state, placing it under President’s Rule.
None of the above conditions are operative, and there was no prior consultation or engagement between the Centre and the states on these bills. Yet, the Central Government went ahead and passed these three laws.
The Disregard of Parliamentary Procedure
The ruling National Democratic Alliance, with the BJP at its centre, has a majority in the lower house, the Lok Sabha, but is in a minority in the upper house, the Rajya Sabha. The Farm Bills passed with ease in the Lok Sabha but faced a challenge in the Rajya Sabha.
There are two ways a bill can be approved. The first is by a voice vote where those in support shout out their approval followed by those against it shouting out their opposition, and the vote is judged by an aural comparison of the two. The second is by a division of votes, where each member’s vote is individually recorded.
Voice votes are frequently deployed in the interests of productive legislative time because they are easier and faster to complete. Lacking a precise count of votes, they are not accurate, and are meant to be utilised when there is sufficient cause to believe that either support or opposition is overwhelming. When votes are expected to be more contentious, only a division of votes can be relied upon.
The opposition had requested that these bills be placed for further scrutiny, reflection and consultation before a parliamentary committee. This request was denied. The opposition asked the Deputy Chairman of the Rajya Sabha for a division of votes to be recorded. This was also denied, a voice vote was forced through, and the claim was made that the bills were approved by voice vote. Live coverage of the vote on Rajya Sabha TV failed at this moment when the vote was recorded.
Unfortunately, chaos erupted in the Rajya Sabha at the time, and members of the opposition let their emotions get the better of them, invading the well of the House, disrupting proceedings and shouting slogans. The government used this chaos as a mask for claiming the passage of the bills, and also claimed that this chaos was the cause of failure of live TV coverage. But the request for a division of votes came before the chaos erupted, and this fundamental point of Parliamentary procedure was ignored.
Democratic procedure should aim at the highest standard of disclosure, consultation and debate. The current regime has taken the opposite route, aiming for minimal disclosure and debate. In the case of the Farm Bills in the Rajya Sabha, there has been a fundamental violation of parliamentary procedure.
The Right to Legal Recourse
As a part of the protection of fundamental rights, the Constitution of India grants to citizens the right to seek legal recourse on laws they feel to be unjust. Article 32 specifically guarantees, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred…” and goes on to state that Parliament may by law empower other courts with such right of review.
This right is explicitly disregarded in two of the Farm Bills.
In ‘The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020,’ Section 13 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 the 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 goes on to add, “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.”
In ‘The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020,’ Section 18 states, “No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, the Registration Authority, the Sub-Divisional Authority, the Appellate Authority or any other person for anything which is in good faith done or intended to be done under the provisions of this Act or any rule made thereunder.” Section 19 goes on to add, “No civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any dispute which a Sub-Divisional Authority or the Appellate Authority is empowered by or under this Act to decide and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any rules made thereunder.”
This is a chilling disregard of the constitutional right of Indian citizens to legal recourse.
An Anti-Democratic Turn
When the Farm Bills came up before the Supreme Court, the court, instead of recognising its obligation to be a guardian of constitutional rights and principles, sought to play a mediatory role by staying the bills and stipulating a committee to look into them. Farmer opinion was not sought on the constitution of this committee, and all the members suggested by the court are people who have publicly declared their support for the bills, so one wonders what the court is really seeking to do.
The disregard for constitutional norms, for debate and consultation, for transparency, for inclusiveness, has been characteristic of the political regime currently in power. There is heightened concern when the Supreme Court turns a blind eye to events that, to many, threaten the integrity of the Constitution of India. We have seen this in multiple cases: The Citizenship Amendment Act, electoral bonds, multiple habeas corpus cases, the process of overturning Article 370 in Kashmir with the imprisonment of political leaders without charge, India’s track record in being the world leader in government enforced internet shutdowns, and more. The difference in the case of the Farm Bills is that the constitutional question coincides with a massive people’s movement. This offers a juncture in history where it is imperative that citizens concerned about the health of democracy in India take a stand to publicly declare their disquietude. As Shakespeare said in ‘Julius Caeser’, “There is a time in the affairs of men which, when taken at the flood, leads on to fortune.”