Farm laws and the subsequent protests: A legal and Constitutional Analysis

Introduction

In September 2020, the Indian government passed three new farm laws – the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, and the Essential Commodities (Amendment) Act. [1] These laws aimed to reform the agricultural sector by allowing more private sector participation. [2] However, farmers across India began protesting against these laws starting late 2020, concerned that the laws would reduce their bargaining power and income. [3] The protests gained momentum through late 2020 and 2021, with tens of thousands of farmers camping at Delhi’s borders. [4] This blog post analyzes the farm laws and subsequent protests from a legal and constitutional perspective. It examines issues of legislative competence, judicial review, fundamental rights, and police powers in the context of the laws and protests.

Key Provisions of the Farm Laws

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act allows for intra- and inter-state trade of farmers’ produce outside the physical premises of APMC mandis without payment of any market fees or cess. [5] It aims to provide farmers with additional marketing channels outside the mandi system.

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act provides a framework for contract farming through written agreements between farmers and buyers. [6] It sets out requirements for pricing, quality, and dispute settlement through conciliation. The Essential Commodities (Amendment) Act removes cereals, pulses, oilseeds, edible oils, onions and potatoes from the list of essential commodities under the Essential Commodities Act, 1955. [7] It also removes stock holding limits on such agricultural produce. This could encourage large scale storage and drive private investment in the agriculture supply chain. [8]

Constitutional Validity of the Laws

The constitutional validity of the farm laws has been challenged by farmers. [9] They argue that agriculture is a state subject under the Constitution, so the Centre lacks legislative competence to make laws governing intra-state trade and commerce of agricultural produce. [10] However, the Centre has countered that the laws regulate inter-state trade and commerce, which is under the Union List. [11] The Centre also has jurisdiction over production, supply and distribution of products under the Concurrent List. [12]

Articles 245 and 246 of the Constitution deal with legislative powers of Parliament and state legislatures based on the Union, State and Concurrent Lists under the Seventh Schedule. [13] For a law to be constitutionally valid, the legislature enacting it must have competence over the subject matter under the respective Lists. Judicial review powers of the Supreme Court under Article 13 enable it to examine the constitutional validity of laws. [14] The Supreme Court has stayed implementation of the farm laws and set up a committee to resolve the stand-off between farmers and the government. [15] This indicates the Court will test the laws on grounds of legislative competence if challenged.

Fundamental Rights and the Protests

The farmers’ protests have raised issues relating to fundamental rights under the Constitution. Freedom of speech and expression under Article 19(1)(a) includes the right to internet access as held in Anuradha Bhasin v. Union of India. [16] Temporary internet shutdowns around protest sites have curtailed this right. [17] Under Article 19(1)(b), citizens have the right to assemble peaceably and form associations. [18] While protests have been allowed at Delhi’s borders, entry into the capital was initially blocked. [19] The Supreme Court has said protests cannot continue indefinitely on public roads. [20]

Restrictions on rights under Articles 19(2) and 19(3) are permitted for certain grounds including public order, decency and morality. [21] The government has argued that restrictions aim to maintain law and order. [22] However, any restrictions must be proportional and reasonable as per the tests laid down in KS Puttaswamy v. Union of India. [23] The extensive use of force and internet shutdowns have raised proportionality concerns. [24] The right to constitutional remedies under Article 32 has enabled protestors to approach the Supreme Court. [25] The Court has attempted to balance the protests with public order. [26]

Executive Actions and Police Powers

In response to the protests, the police have used force including water cannons, tear gas shells and baton charges to control crowds and prevent entry into Delhi. [27] While reasonable restrictions on movement on public roads may be imposed for public order under Article 19(2) and (3), allegations have been made of excessive use of force by police. [28] Supreme Court guidelines in Ram Jawaya Kapur v. State of Punjab limit police powers for crowd control and dispersal. Proportionality of force is key. [29] Indiscriminate suspension of internet services also faces proportionality issues. [30]

The police have powers under the Code of Criminal Procedure, 1973 to control public assemblies and processions. [31] But restrictions under Section 144 must be reasonable and meet proportionality standards. [32] Arrests of protestors and journalists have been made under various charges. [33] But arrests must not be arbitrary, excessive or retaliatory. [34] Restrictions on reporting raise free speech concerns. [35] In sum, while police have powers to maintain public order, any restriction on rights must satisfy proportionality under the Constitution. [36] A balanced approach is required during protests to uphold both law and liberty. [37]

Conclusion

The farm laws have raised important legal and constitutional issues relating to centre-state legislative powers, judicial review of laws, restrictions on fundamental rights, and use of police powers. While the repeal of the laws has addressed farmers’ concerns, key questions remain on balancing economic reforms with federalism and rights. The Supreme Court has played a vital role in upholding constitutional values amidst the protests. However, achieving lasting solutions requires the government to engage with stakeholders meaningfully when introducing reforms. The protests have highlighted the need for inclusive policy-making that respects federalism, empowers farmers, and upholds fundamental rights. A collaborative approach is needed for growth with justice in the agricultural sector.

References

[1] The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020; The Essential Commodities (Amendment) Act, 2020.

[2] PTI, Explained: Why are the Agriculture Bills being Opposed, The Indian Express (Sep 18, 2020), https://indianexpress.com/article/explained/farm-bills-protests-opposition-6549369/.

[3] Same as [2].

[4] Scroll Staff, Farm Law Protests: 200 Days on, Here’s What Has Happened So Far, Scroll.in (Jun 5, 2021), https://scroll.in/article/996096/farm-law-protests-200-days-on-heres-what-has-happened-so-far.

[5] The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, No. 21, Acts of Parliament, 2020 (India), https://www.indiacode.nic.in/handle/123456789/2104?locale=en.

[6] The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, No. 20, Acts of Parliament, 2020 (India), https://www.indiacode.nic.in/handle/123456789/2103?locale=en.

[7] The Essential Commodities (Amendment) Act, 2020, No. 22, Acts of Parliament, 2020 (India), https://www.indiacode.nic.in/handle/123456789/2105?locale=en.

[8] Explained Desk, Centre’s Farm Laws: Who Benefits & Who Doesn’t, The Indian Express (Sep 20, 2020), https://indianexpress.com/article/explained/centre-farm-bills-protests-agriculture-reforms-6595480/.

[9] State of Punjab & Ors v. Union of India & Anr, SLP (Civil) No. 15529/2020 (Supreme Court, Jan 12, 2021) (India).

[10] Same as [9].

[11] Same as [9].

[12] Constitution of India, art. 246, Seventh Schedule, List III.

[13] Constitution of India, arts. 245-246.

[14] Constitution of India, art. 13.

[15] State of Punjab & Ors v. Union of India & Anr, SLP (Civil) No. 15529/2020 (Supreme Court, Jan 12, 2021) (India).

[16] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).

[17] Vidhi Doshi, India’s Government Has Blocked Internet Access At Protest Sites, The Washington Post (Feb 3, 2021), https://www.washingtonpost.com/world/asia_pacific/india-internet-blackout-protests/2021/02/03/677d2600-661d-11eb-8468-21bc48f07fe5_story.html.

[18] Constitution of India, art. 19(1)(b).

[19] Constitution of India, art. 19(1)(c).

[20] Anita Joshua, At Tikri Border, Farmers Say Their Fight is for a Democratic Right, The Hindu (Dec 5, 2020), https://www.thehindu.com/news/national/at-tikri-border-farmers-say-their-fight-is-for-a-democratic-right/article33246658.ece.

[21] Krishn Kaushik, Explained: Why the Govt Wants to Locate Farmers Away from Delhi Borders, The Indian Express (Dec 3, 2020), https://indianexpress.com/article/explained/why-govt-wants-to-shift-protesting-farmers-from-delhi-borders-7090172/.

[22] Bhuvan Bagga, India Blocks Roads to Prevent Farmers’ Tractor Rally, France24 (Jan 26, 2021), https://www.france24.com/en/live-news/20210126-india-blocks-roads-to-prevent-farmers-tractor-rally.

[23] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).

[24] Vidhi Doshi, India Cuts Internet Around New Delhi as Protesting Farmers Clash With Police, The Washington Post (Jan 26, 2021), https://www.washingtonpost.com/world/asia_pacific/india-farmers-protest-internet-delhi/2021/01/26/31d8d9f2-5efb-11eb-a177-7765f29a9524_story.html.

[25] Constitution of India, art. 21.

[26] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).

[27] Constitution of India, art. 19(1)(a).

[28] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).

[29] Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423 (India).

[30] Software Freedom Law Centre v. Union of India, WP (Civil) No. 4480/2021 (Kerala High Court, Feb 2, 2021) (India).

[31] Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India), s. 144.

[32] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).

[33] Betwa Sharma, Modi Govt Has a New Tactic To Crush Farmer Protests: Arresting Journalists, The Wire (Feb 15, 2021), https://thewire.in/rights/farm-protests-journalists-arrested-haryana-uttar-pradesh.

[34] Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India).

[35] Foundation for Independent Journalism v. Union Territory of Jammu and Kashmir, (2021) 5 SCC 311 (India).

[36] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).

[37] Superintendent Central Prison v. Dr. Lohia, AIR 1960 SC 633 (India).

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