India’s Farmer Protests - On Due Process And Legal Exploitation
An Introduction to the Series
The ongoing Farmer Protests in India are, in many ways, an ideal case study for India’s deteriorating socio-political and economic climate. Whether it’s the polarisation of social discourse; the crumbling agricultural industry; the dangers of a free, unregulated market; the politicisation of public policy; the violation of human rights; the violence and protests; the communalisation of social issues; the suppression of dissent; or the role of social media in activism. Rest assured, there is a lot to be said. And as is with multiple ‘so-called’ non-Western issues - from the coup in Myanmar to the protests in Hong Kong and the several conflicts in the middle east - discourse and awareness is inexcusably scarce.
This mini-series of articles, aims to unpack the various layers and nuances of the farmer crisis in India. One might find that there are several thematic relations with ongoing crises in their own countries. Each article will explore some of these broader themes in the context of the Farmer Protests.
Agriculture and India – A Brief Timeline
It is virtually impossible to understand the nuances of the ongoing Farmer Protests without examining the long and winding history of India’s largely agrarian economy. A Working Paper by the Federal Ministry of Food and Agriculture suggests that this sector employs nearly 50% of India’s workforce and makes up 17-18% of its GDP. India’s vast agricultural terrain was one of the several characteristics that made it a lucrative British colony. India’s historical dependence on the industry is evident.
This, however, has been largely impeded by two factors: misinformed or ill intentioned policy and natural disasters. A persistent issue with agrarian policy, as voiced by reputed Economist Edward Mason is the systematic suppression of agricultural prices both domestically and as exports. This is worsened by a lack of state investment in agricultural technology leading to large amounts of produce wastage and inefficient farming. Simultaneously, major agricultural land in states such as Maharashtra and Karnataka are prone to droughts and lengthy dry spells, both of which have increased since 1950. These two conditions led to a grave market failure in terms of agriculture and farmers having to often sell their produce at meagre profits or even at a loss. This, inevitably, has also led to a massive mental health and farmer suicide crisis in rural India. Allegedly underreported statistics approximate that10,281 farmers committed suicide in 2019 alone.
Enter, the three Farm Bills – Farmers’ Produce and Commerce Act, Farmers Agreement on Price Assurance, and Farm Services Act – introduced and passed in parliament in September 2020. Briefly, the laws abolish the Mandis (regional boards intended to protect farmers from price exploitation by large retailers), deregulate the market for produce such as cereal, pulses, and oilseeds, and provide a legal framework for contract farming – business between farmers, exporters, wholesalers, and retailers.
These contentious farm laws led to widespread opposition and ongoing organized protests by farmers that began in September. Demonstrations began in Punjab but were soon orchestrated in various states across the country including Maharashtra, Karnataka, Tamil Nadu, and Kerala. Several negotiations and discussions between the central government and the farmer unions have been largely unproductive – where the state refuses to revoke the bills completely and the farmers settle for nothing less. On January 26th, 2021, India’s Republic Day, the protests became violent. Stories regarding police brutality and the cause of the violence are largely disputed. Undeniably, however, numerous casualties were borne by both sides. Following the protests, numerous stories of journalists and protestors being wrongfully detained, internet bans around the state, and communalisation of the issue in the media were raised.
With this context in mind, one can begin to analyse different aspects of it. In this article, I explore the legalities of the bill, or rather what legal provisions it contains and the corresponding grievances that the protestors possess. During the course of my research, I had the opportunity to interview an accomplished legal expert whose insights contributed to the formulation of my arguments.
Who is our Interviewee?
The primary source for several arguments in this article was an interview with Sitwat Nabi – a law practitioner for over four years, enrolled with the bar council of Delhi with experience in various courts and tribunals including the Indian Supreme Court and the Delhi High Court. Her primary experience lies in commercial and civil law.
Nabi was one of the advocates that drafted a petition signed by 140 lawyers from around India to the Chief Justice of India in response to the incident on January 26th. The letter presented two main demands – take cognizance of the mobile internet cuts on protest sites as violations of human rights and set up an enquiry commission to probe the police inaction dealing with violence during one of the rallies. In this interview Nabi discusses her apprehensions against the content and enactment of the farmer laws from a legal standpoint.
The Importance of Due Process
In legal jargon, there exists a slight but critical difference between ‘Procedure Established by Law’ and ‘Due Process of Law’. The process by which the farmer laws were introduced, debated, and implemented violate both, hence setting a dangerous precedent for the future.
Let us first understand this difference. Article 21 of the Indian Constitution states “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” This implies that the introduction of any legislature is valid if correct parliamentary procedure is followed. Notice how it does not mention ‘Due Process of Law’. This is a phrase used in the constitutions of several countries that also provides the Supreme Court with the ability to withhold legislation that may seem unfair, discriminatory or arbitrary. Without such a framework, the state retains a threatening and disproportionate amount of power against its citizens.
Starting September 2020, when these bills were introduced, they barely followed the legalities of India’s parliamentary practices. Under the pretext of COVID-19, proper discussion and deliberation was not dedicated. In the Indian parliaments, the legal tradition for the introduction of new laws is to conduct clause-by-clause explanations and discussions. This was ignored with a disdainful haste. In fact, the opposition parties’ demand for a detailed discussion and the tabling of the bills until they have been scrutinized by the select committee went unacknowledged. As a constitutional democracy the state is obligated to conduct proper debate over legislation , therefore violating the ‘Procedure Established by Law’.
However, this was also reflective of a much wider problem which is the lack of provisions within the Indian constitution for protection against the state in the form of ‘Due Process of Law’. The fact that the consent and opinions of the primary stakeholders – farmers – were excluded from the conversation seems unreasonable and undemocratic. While clearly unfair, it does not, however, present grounds for the Supreme Court’s opposition according to this flawed model of a “constitutional democracy”.
An Imbalance in Legal Power
“Deregulating the markets and eliminating the corrupt Mandis (regional boards intended to protect farmers from price exploitation by large retailers) will financially benefit farmers” is a common argument used by proponents of these bills.
However, a common misconception that I myself have fallen victim to is creating sweeping generalizations of ‘Indian farmers’ and the standards that should apply to all of them. It is often convenient to ignore the large disparity and diversity within the community that are subject to the farmer laws. Here’s a statistic that might contextualise this disparity for you – 85% of farmer households earn 9% of total agricultural income while the 15% of farmers earn 91% of agricultural income. And therefore, to assume that the same laws will benefit every farmer irrespective is both implausible and untrue.
Here's why: one of the three bills - The Farmer’s Empowerment and Protection Agreement on Price Assurances and Farm Services – was introduced to aid contract farming by both fixing crop prices and providing a nation-wide legal framework for engaging in it. The farmers produce crops and then enter agreements with investors that tend to be private corporations and conglomerates. Such contract farming practices have always posed the danger of private investors practicing legal dominance by manipulating the lack of education amongst smaller, freelance farmers through nuanced legal terms like ‘limitation of liability’ clauses. This clause, for example, is often used in farming contracts that limits the amount of money that investors owe farmers if a contract between them leads to any kind of losses. Its ambiguous nature is often used by larger investors to avoid payments.
While this might simply be a hypothetical, the next bill – the Farmers Produce, Trade, and Commerce Promotion and Facilitation Act – provides more demonstrable grounds for the same criticism. This bill enables farmers to sell their produce nationally outside of state-mandated Mandis rendering them useless. The intent was to eliminate them due to corruption, bribery, and other such malpractices. This change in policy, however, only benefits large scale farmers. While larger farmers have the financial and educational resources to enter proper legal contracts and undertake legal recourse, smaller farmers don’t. The lack of legal regulation via government mandated Mandismeans that they will now have to deal directly with larger investors and corporations. And a lack of legal literacy will leave them more vulnerable to legal exploitation and conflict. This problem arises, not just from a lack of legal literacy, but also a severe lack of literacy as a whole in rural India. Corporations exploit this by manipulating small-scale farmers and landowners into entering predatory contracts without proper informed consent. They further discriminate against communities educated in regional languages that do not speak official languages like English or Hindi. Moreover, not only are legal battles time-consuming and expensive (a privilege smaller farmers don’t have), the following bill worsens the smaller farmers’ abilities to pursue them, as elaborated upon in the next section.
The Separation of Powers and Why It’s Necessary
The Theory of Separation of Powers is practiced by most democratic nations. It outlines that essentially, there are three organs of government – the legislature (that formulates laws), the executive (that implements and enforces them), and the judiciary (that interprets laws and applies them to solve legal disputes). The theory, as presented by Montesquieu, suggests that these three functions must always be fulfilled by three separate, independent organs. This is to allow room for each to maintain checks and balances on each other such that one does not become all-powerful. Combining either two or all three of their functions into one body is dangerous, both for individual liberty and bureaucratic efficiency within the state. Therefore, clearly outlining the differences in the role of, say the parliaments, the police, and the high courts, is essential to prevent tyrannical regimes.
The new farmer laws, however, outline a revised dispute redressal mechanism that excludes the role of the judiciary and therefore, dilutes the separation of power. How so? The bill outlines the formation of a conciliation board that is appointed by the sub-divisional magistrate’s office. This board will oversee any and all disputes arising from farming contracts and its decisions will be binding on all parties. Section 15 of this act expressly states that no civil court shall have the jurisdiction to entertain any suit or proceedings involving the decisions made by this committee. The problem, therefore, is that the sub-divisional magistrate is an executive whose decision cannot be appealed against by farmers to the judiciary in a court of law. And when judicial and executive powers are controlled by one organ, the administration of justice is flawed.
The problem with such a mechanism seems intuitive but to explain it further, it is analogous to this: Raj enters a deal with a predatory bank, he is wrongfully detained by the police for owing money to said predatory bank, the police order that he pay the money as demanded by the bank, Raj would like to appeal against this ruling in a civil court but the jury is appointed by the same police that detained him in the first place. A glaring conflict of interest. Whether or not the jury (conciliation board) makes a fair decision, it is Raj’s (the farmers’) right to dispute it to an independent, unbiased judiciary.
The Foreseeable Future
If there is one theme I would like for you to take away from this article, it is the increased commercialization of an industry that has, for a long time, been a source of employment for India’s lower classes. Incidents such as the new farmer laws, the welcoming of international agrochemical corporations such as MonSanto onto Indian land, and the state’s constant endorsement of large conglomerates (such as Jio) indicate repeated patterns of national cronyism, often at the cost of India’s working class. It is easy to say deregulation, free-markets, abolishment of state Mandis, and the promotion of contract farming will profit farmers. It is harder to ask which farmers? Because the legal analysis derived from extensive research and interviews as seen in this article simply points towards the top nine percent, at the expense of the bottom ninety-one.
My aim for this and all forthcoming articles on India’s farmer protests is two-fold. The first is to present a coherent, fair analysis of all the criticisms against the farmer laws, rid of any sensationalism and propaganda. And the second is to highlight major themes that the issue sheds light upon that might resonate with individuals of different castes, classes, creeds, and nationalities; themes that apply, not just to this particular issue, but highlight India’s socio-political climate as a whole.
Sidenote: Although I have tried to ground my writing in strong research, these opinions are entirely my own and I am open to hearing any perspectives that argue otherwise for future writings. I can be reached at hb207@st-andrews.ac.uk. A huge thankyou to Sitwat Nabi for lending her expertise.
