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Mainstream, VOL LIX No 1, New Delhi, December 19, 2020

Indian State Wants the Right to be Absent for Protection of Farmers and Citizens | Gopal Krishna

Saturday 19 December 2020

by Gopal Krishna *

After granting the right to anonymity, the ultimate privilege to the investors and donors of ruling parties, the Indian State wants the right to be absent in the face of cries for social, political and economic injustice in general and for farmers’ demand for justice in particular. What started as seemingly small amendments in the Companies Act in 2002 and 2013 for corporate political donations has emerged as an exercise in rewriting the political and electoral geography in the aftermath of amendments in relevant laws through Finance Acts of 2017 and 2018. It has paved the way for forging relationships that enable and facilitate accumulation by dispossession. The decriminalisation of some 60 corporate crimes through yet another amendment during the pandemic has left not even an iota of doubt about the quid pro quo underway. Indian citizens in general and farmers in particular have been able to identify some of these corporate investors and donors who have vindicated the scholars of white-collar crimes. These scholars have contended for long that corporations which used to be artefacts of laws have transformed their roles, now they have ensured that laws have become artefacts of corporations.

The enactment of the three illegitimate agriculture market laws are linked to the amendment in the companies act and related laws for electoral finance and anonymous foreign donations. These investors and donors have coerced the State to withdraw from its responsibilities towards farmers, the producers of primary agricultural commodities including women, land owners, tenants, sharecroppers, farm workers, plantation workers, milk producers and everyone engaged in crop cultivation, shifting cultivation, apiculture, sericulture, vermiculture and agro-forestry.

Farmers are demanding presence of the State to safeguard economic survival of majority of Indian households, national dignity, civilizational heritage and their future. Ironically, State is resisting their demand under the colossal influence of investors and donors of ruling parties. State wants to escape from its responsibilities. State wants the right to be remain unaccountable by refusing to exercise its role as a regulator.

A bizarre situation is being witnessed wherein defenders of the regulatory role of the Indian State, the 500 farmers’ organisations are being defined as Un-Indian by the news channels owned by the investors and donors of ruling parties. The latter have made the State act like an adversary with cruelty towards the villagers and the farmers. These purveyors of news are establishing a weird, stupid and vulgar cultural norm devoid of truth and reason because of their political relevance unmindful of the fact that Seventh Schedule of Constitution of India that allocates subjects on which central legislature and state legislature can legislate, is being made irrelevant. “Markets” are specifically mentioned as a State subject in entry 28 of List II under the Seventh Schedule. They are unmindful of states’ right to legislate on state subjects- agriculture and market.

State Executive has been undermining judiciary in instalments through tribunalization in the aftermath of the verdict of Allahabad High Court against I. Gandhi in 1975, now it is barring the jurisdiction of all civil courts as well and confining it to the jurisdiction of Sub-Divisional Magistrate and Collector or Additional Collector for dispute resolution under the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020. This law provides for trade area beyond Section 13 of the Act states that “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.” The fact remains under the law "person" includes an individual; a partnership firm; a company; a limited liability partnership; a co-operative society; a society; or any association or body of persons duly incorporated or recognised as a group under any ongoing programmes of the Central Government or the State Government. It is apparent that the investors and donors of the ruling parties have made themselves immune from “suit, prosecution or other legal proceedings” in respect of anything under the guise of being “any other person” mentioned in this legal provision. It is depriving every present and future Indian including farmers of the absolute fundamental right to constitutional remedy recognized under the Constitution of India.

It is noteworthy that Section 3 sub-section 1 of Essential Commodities Act, 1955 deals with the powers to control production, supply, distribution, etc., of essential commodities. It states that "If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.” This provision of 1955 along with the amendment of 1967 with regard to defence and military operations, makes the continued presence of State quite explicit in both the ordinary and extraordinary circumstances in keeping with the constitutional obligations.

Reversing the pre-existing provision, Section 2 of Essential Commodities (Amendment) Act, 2020 [Removal of Stockholding Limits Act] inserts a new sub-section (1A) after sub-section 1 of Section 3 of the Essential Commodities Act, 1955. The new sub-section states that “Notwithstanding anything contained in sub-section (1) of Section 3 “the supply of such foodstuffs, including cereals, pulses, potato, onions, edible oilseeds and oils, as the Central Government may, by notification in the Official Gazette, specify, may be regulated only under extraordinary circumstances which may include war, famine, extraordinary price rise and natural calamity of grave nature”. It is evident that State is withdrawing from its role to perform regulatory role with regard to control production, supply, distribution, etc., of essential commodities. It is apparent that the new amendment has failed to factor in the fact that India is currently faced with extraordinary circumstances of war, extraordinary price rise and natural calamity of grave nature like pandemic. The legal provisions of 1955 and 1967 were enacted with the realization that in a vast and diverse country like India, even ordinary circumstances are extraordinary in nature. Contrary to the constitutional obligations, this new provision makes the State absent in ordinary circumstances.

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 provides for a national framework on farming agreements that claims to protect and empower farmers to engage with agri-business firms, processors, wholesalers, exporters or large retailers for farm services and sale of future farming produce at a mutually agreed remunerative price framework in a fair and transparent manner. "Farming agreement" refers to a written agreement entered into between a farmer and a Sponsor, or a farmer, a Sponsor and any third party, prior to the production or rearing of any farming produce of a predetermined quality, in which the Sponsor agrees to purchase such farming produce from the farmer and to provide farm services. It includes "trade and commerce agreement", where the ownership of commodity remains with the farmer during production and he gets the price of produce on its delivery as per the agreed terms with the Sponsor. It also includes "production agreement", where the Sponsor agrees to provide farm services, either fully or partially and to bear the risk of output, but agrees to make payment to the farmer for the services rendered by such farmer. Every such agreement is required to provide for a conciliation process and formation of a conciliation board consisting of representatives of parties to the agreement. Where the parties to the farming agreement fail to settle their dispute under that section within a period of thirty days, then, any such party may approach a Sub-Divisional Magistrate or later a Collector or Additional Collector in appeal for deciding the disputes under farming agreements. Under this law too it is provided that no civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any dispute action taken by these district authorities. In this manner, the State has withdrawn the judicial function of its civil courts and expressed touching faith in the tried, tested and failed judicial competence of subordinate executive authorities.

While feigning to be seeking right to be absent, Indian State is uniting executive powers and judicial powers in the same person. It is evidently an exercise in blasphemy against constitutionalism and Constitution of India and the sacred theory of separation of powers enunciated by French philosopher, Montesquieu in his The Spirit of Law influencing framing of democratic Constitutions. These three farm market laws are contrary to the theory of separation of powers and principles of constitutionalism which secures nations from "despotism".

* (The author is a law and public policy researcher and a member of the steering committee of Nation for Farmers|

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