Indian agricultural reforms trouble both lawyers and farmers

Abby SeiffTuesday 30 March 2021

Since then, tens of thousands of farmers have set up camp on the outskirts of Delhi, engaging in one of the largest and longest demonstrations against laws that critics warn will destroy the livelihoods of hundreds of millions in India.

The three farm acts seek to reform India’s agricultural sector. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act permits farmers to sell outside of state-regulated markets. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act sets mechanisms for farmers’ contracts with companies. And the Essential Commodities (Amendment) Act deregulates a number of staple foods.

Previously, the government set a minimum support price (MSP) at which they would guarantee the purchase of farm products. That acted as a type of safety net, albeit one riddled with issues that kept farmers impoverished, deeply in debt and facing a perennial suicide crisis.

While more than half of the country is employed in agriculture, in 2019 the sector contributed just 15 per cent to India’s gross domestic product, leaving farmers less powerful than ever.

India’s Prime Minister Narendra Modi argues that privatisation is the key to improving the lot of farmers. But the three laws have been received bitterly by many farmers and advocates, who are concerned they will benefit major agribusiness at a steep cost to small farmers.

While economists, legal experts and the farmers themselves agree reform is needed, there remains division over the likelihood that these particular laws will deliver such improvements.

Some have lauded the acts as a long overdue effort to open markets. But many have raised concerns over the lack of oversight, the process by which the laws were conceived and passed, and the laws’ sweeping legal protections for companies, which have little precedent.

In the intervening months, negotiations between Indian central ministers and farmer representatives have yielded little progress, with farmers currently demanding nothing less than the full revocation of the laws.

Ramesh Vaidyanathan is Vice-Chair of the IBA Asia Pacific Regional Forum and Founder and Managing Partner of Advaya Legal, Mumbai. He’s unsure if the laws will be revoked, but ‘the outcome, whatever it is, will be achieved through political means rather than legal means.’

He argues that the laws were badly needed. ‘There is considerable merit in the government assertion that the farm laws will transform the agriculture sector and raise farmers’ income’, he says. ‘It is expected that the new laws will make farmers independent of government controlled markets and fetch them a better price for their produce.’

But other legal experts have come out on the side of the demonstrators.

In December 2020, the Bar Council of Delhi sent a letter to Prime Minister Modi, calling for a revocation of the laws. It highlighted how the laws could affect the legal community and the courts.

Among the most controversial provisions of the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act is Section 19 of the law. This says that ‘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.’

The provision appears to defy the constitutional right to judicial independence.

In its letter, the Bar Council warned that ‘The mindset behind the move to oust the jurisdiction of civil courts and transfer of power to bureaucrats, acting as executive officers, to decide disputes between the traders and the farmers, will lead to corruption’.

It added that preventing civil courts from hearing disputes relating to matters covered by the farming laws ‘will prove disastrous’.

That sentiment has been echoed by others.

‘With their uncanny grassroots intuition, the farmers had realized something that many economists, including me, had missed. If a corporation violates a contract with a farmer, the new laws prohibit the farmer from seeking redress in a regular court,’ wrote Kaushik Basu, a former chief economist at the World Bank.

He added that if the Indian government dismantles the MSP system rather than reforming it, farmers will be forced to sell their products to four or five big agribusiness corporations.

The laws were passed with scant consultation, which some argue is in violation of India’s laws and the United Nations Declaration on the Rights of Peasants, to which India is a party. Petitions have been filed with the Indian Supreme Court to challenge the constitutional validity of the laws.

Speaking at the UN Human Rights Council in mid-March, Darshan Pal, leader of Samyukt Kisan Morcha – a coalition of farmers’ unions – noted that the Declaration ‘insists that the country must consult the farmers before laws and policies are enacted.’

Pal asked the UN to urge the Indian government to abide by the Declaration, repeal the laws and begin consultations on reforms that are friendly to both farmers and the environment.

He warned that removing the MSP alongside access to courts cannot improve the situation of farmers.

‘These laws will not double our income,’ said Pal. ‘The few states where similar policies were introduced have seen farmers sinking into poverty, losing their lands and having to work as labourers elsewhere to make ends meet. We want reforms but not these ones.’

Header pic: Shutterstock.com / PradeepGaurs