Farmers at Singhu border
Farmers at Singhu border

As you read this on Christmas, nearly 250,000 agitating farmers are braving the biting cold at Delhi’s borders, fighting for a life of dignity. With 29 protesters laying down their lives during the ongoing agitation, the farmer-protagonists and their state-antagonists continue to face off with no respite. As the world watches impassively.

The government claims its three new farm laws will transform Indian agronomy by attracting private investment. To put it succinctly, The Farmers' (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, provides for contract farming, under which farmers will produce crops as per contracts with corporate investors for mutually-agreed remuneration.

The protesting farmers fear these corporate-investors will bind them to one-sided liability clauses in technically-worded contracts which the poor peasants will not understand. Whether real or imaginary, the farmers fear the absence of a statutory guarantee of Minimum Support Price (MSP), will force them to sell their produce for a song. The small farmers do not have funds to transport their produce outside their home states for better prices.

Corporatise agriculture

The government asserts The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (FPTCA) liberates farmers by giving them the freedom to sell anywhere before or after they harvest their crops. The opposition alleges this will corporatise agriculture, with the whims of the monsoon uniting with the quirks of the market to wreck the farmers’ lives.

Those opposing the new laws argue that farmers can sell outside the APMC even now, and most in fact do, albeit after paying the required fees or cess. In Punjab and Haryana, the epicentre of the protests, the market fee, rural development fee, and arhatiyas’ (middlemen) commissions are 3, 2.5 and 2 per cent, respectively. These are big sources of state revenue — with states not permitted to levy market fees or cess outside APMC areas. Under the new laws, Punjab and Haryana could lose roughly Rs 3,500 crore and Rs 1,600 crore each year respectively.

The Supreme Court’s trend has been to postpone hearings on sensitive matters in which the government has a major stake. Ditto for the validity of these three laws which are alleged to be anti-farmer. The learned judges do need a break from deciding weighty matters concerning government policies in which the court has reiterated it will not interfere. But now it has been forced to do so. So, the later, the better.

Special vacation bench of SC

The apex court could have set up a special vacation bench to hear arguments against the validity of the three alleged anti-farmer laws. If the learned judges could assemble after midnight to hear a last-ditch effort for reprieve to a terrorist, there is no reason why the farmers’ lives should not be saved by deciding whether these three laws should be struck down or not. It is not enough to recognise the farmers’ right to protest. The apex court alone has the expertise to decide if these laws are twisted to favour the corporates acting as a front for the government. After all, it is the judiciary which decides what those who wrote the Constitution intended – although the founding fathers may never have intended what the judges say they intended.

The FPTCA has clauses which take away the right of the farmers to approach the civil courts if the government delegates its powers to big corporates who act “in good faith”. This by itself is a gross violation of the farmers’ fundamental right to approach all courts, including the Supreme Court under Article 32. The government has appointed sub-divisional magistrates to supervise such disputes and act as appellate authorities, with a second appeal before an additional collector, who may not decide against the government which pays their salaries and gives them privileges.

Contract law

A farming agreement is really a contract between private consenting parties and is governed by the principles of contract law. Like Brahma, Vishnu and Shiva, the Government plays the triumvirate role of enforcer, adjudicator and interpreter of the law, thereby abolishing the separation of powers between the executive and the judiciary. Whether the apex court will uphold or strike down those parts of the FPTCA which definitely violate the farmers’ right to approach the courts will confirm suspicions whether the Supreme Court has turned into an executive-friendly court or not. After all, it is the Government which has the final say in who will be appointed a judge.

And so the farmers continue to brave the biting cold at Delhi’s borders, which they believe will rob them of their livelihood and eventually, their lands too. Protests against the Central farm laws began in Punjab soon after they were passed by Parliament in September. Members of 31 farmer organisations of Punjab, which represent nearly one million farmers in the state, have been blocking highways and railway tracks passing through the state since September 22.

Despite the perceived cosmetic benefits, the farmers want these three contentious Acts to be repealed while the government will not do so. The Union Agriculture Minister, in an open letter to the farmers, alleged those stopping trains going to Ladakh where an Indo-China war may break out cannot be “true” farmers. The minister seems unaware that our soldiers are quite often farmers’ sons.

Plea for removal of farmers

While the Bharatiya Kisan Union has challenged the constitutional validity of the three Acts, a law student in a separate petition has sought the removal of protesting farmers from the site to a designated place citing inconvenience to the public, apart from being spreading the Covid-19 virus. Whether this petition seeking removal of the farmers is at the behest of the Government to derail the agitation is a moot point.

The Supreme Court has recognised the constitutional right of the farmers to protest if their dissent is non-violent. But when the solicitor general rejected the judges’ suggestion to put on hold the three contentious laws with the attorney general saying he would explore the possibility, the chances of resolving the deadlock have receded.

Farmers and judges have a lot in common. The former gives us food and the latter justice. And both food and justice need each other to survive.

Olav Albuquerque holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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